Gujarat High Court

Rahul Mukeshbhai Bariya vs State Of Gujarat on 13 September, 2021

Bench: Vipul M. Pancholi

     C/SCA/11205/2021                                JUDGMENT DATED: 13/09/2021



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
        R/SPECIAL CIVIL APPLICATION NO.              11205 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI                       :        Sd/-

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1     Whether Reporters of Local Papers may be
      allowed to see the judgment ?                                       NO

2     To be referred to the Reporter or not ?
                                                                          NO
3     Whether their Lordships wish to see the
      fair copy of the judgment ?                                         NO

4     Whether this case involves a substantial
      question of law as to the interpretation
      of the Constitution of India or any                                 NO
      order made thereunder ?

=======================================================
                RAHUL MUKESHBHAI BARIYA
                         Versus
                    STATE OF GUJARAT
=======================================================
Appearance:
MR KARTIKKUMAR K JOSHI(8042) for the Petitioner(s) No.1
MS JYOTI BHATT AGP (1) for the Respondent(s) No.1-5
=======================================================

    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                              Date : 13/09/2021

                                   ORAL JUDGMENT

1. This petition is filed by the petitioner under

Article 226 of the Constitution of India, in

which, the petitioner has prayed that the order of

detention, which is likely to be passed against

the petitioner, be quashed and set aside.

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

2. Heard learned advocate, Mr. K.K. Joshi for the

petitioner and learned AGP Ms. Jyoti Bhatt for the

respondents.

3. Learned advocate for the petitioner has submitted

that six FIRs have been registered against the

petitioner under Sections 406, 420, 465, 467, 471

and 114 of the Indian Penal Code and under

Sections 66(c) and 66(d) of the Information

Technology Act with Cyber Crime Police Station,

Ahmedabad, details of which are given in Paragraph

Nos.3.2 of the petition. It is submitted that

because of the registration of the said FIRs, the

petitioner is having apprehension that he will be

detained under the provision of the Gujarat

Prevention of Anti Social Activities Act, 1985

(hereinafter referred to as "the Act of 1985" for

short) and, therefore, the present petition is

filed. It is also contended that the case of the

petitioner is falling in the Category Nos.III, IV

& V as enumerated in Paragraph No.30 of the

decision rendered by the Hon'ble Supreme Court in

the case of Additional Secretary to the Government

of India V/s Alka Gadia, reported in 1992 (Supp)

SCC 596. It is, therefore, submitted that this

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

Court is empowered to entertain the present

petition at pre-detention/ pre-execution stage.

Learned advocate has also placed reliance upon the

decision rendered by the Hon'ble Supreme Court in

case of Deepak Bajaj V/s. State of Maharashtra,

reported in (2018) 16 SCC 14. It is, therefore,

urged that this petition be allowed.

4. On the other hand, learned APP has opposed this

petition and submitted that six different FIRs

have been registered against the petitioner. It is

further submitted that the petitioner has filed

the present petition only on the basis of the

apprehension that the order of detention will be

passed against him. It is contended that though

the petition is maintainable, scope of

interference while exercising powers under Article

226 of the Constitution of India in such type of

matters is very limited. It is further submitted

that the case of the petitioner does not fall

under any of the categories as enumerated in the

decision rendered by the Hon'ble Supreme Court in

case of Alka Gadia (supra). Learned AGP has,

thereafter, contended that the case of the

petitioner cannot be termed as rare or exceptional

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

case and, therefore, this Court may not entertain

the present petition.

5. Learned AGP has placed reliance upon following

decisions,

(1) the decision rendered by this Court in case of Vijaysinh @ Gatti Pruthvisinh Rathod Vs. State of Gujarat, reported in 2015 (1) GLR 703;

(2) the decision rendered by the Hon'ble Supreme Court in case of State of Maharashtra & Ors. Vs. Bhaurao Punjabrao Gawande, reported in (2008) 3 SCC 613; (3) an order passed by this Court on 28.11.2014 in Special Criminal Application No.1088/2010; and (4) recent judgments delivered by this Court on 07.09.2021 in Special Civil Application No.8628/2021 and allied matters in case of Santoshsinh Narendrasinh Chauhan Vs. State of Gujarat & Ors., as well as delivered on 08.09.2021 in Special Civil Application No.12983/2021 in case of Iqbal @ Aslam Umarbhai Taili Vs. State of Gujarat.

6. Relying upon the aforesaid decisions, learned AGP

has urged that this petition be dismissed.

7. Having heard learned advocates appearing for the

parties and having gone through the material

placed on record, it would emerge that even as per

the case of the petitioner himself, six different

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

FIRs have been registered against him, details of

which are given in Paragraph No.3.2 of the memo of

petition. It is further revealed that even as per

the case of the petitioner himself, till date the

order of detention has not been passed and the

petitioner is having apprehension that the order

of detention will be passed under the provision of

the Act of 1985 against him. Thus on the basis of

mere apprehension, the present petition is filed.

8. At this stage, this Court would like to consider

recent judgment dated 07.09.2021 delivered by this

Court in case of Santoshsinh Narendrasinh Chauhan

(supra) as well as the judgment dated 08.09.2021

in case of Iqbal @ Aslam Umarbhai Taili (supra).

In those judgments, this Court has, after

considering various decisions rendered by the

Hon'ble Supreme Court, the decision rendered by

the Full Bench of this Court and the judgments

rendered by the Division Bench of this Court, made

relevant observations.

9. In the judgment dated 07.09.2021 delivered by this

Court in case of Santoshsinh Narendrasinh Chauhan

(supra), this Court has observed in Paragraph

Nos.6.13 to 6.19 as under,

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

"6.13 At this stage, this Court would like to refer the order dated 3.12.2020 passed by this Court in Special Civil Application No.13681 of 2020. In similar type of case which was filed by the concerned petitioner stating that order of detention has been passed against the co- accused and therefore the petitioner is having reasonable apprehension that similar type of order of detention will be passed against him, this Court has, after referring to the various decisions rendered by the Hon'ble Supreme Court as well as the orders passed by this Court, observed in paragraph 14 as under:

"14. It is also further clear that the petition cannot be entertained though the same is maintainable, more particularly, at pre-execution stage even if the order of detention is passed against co-accused. In the present case, there is no averment in the petition that the order of detention has been passed even against co-accused. The tenor of the petitions that are filed in the Court indicate that the burden shifted on the Court to inquire into from the respondent detaining authorities as to whether there is a case for the detaining authority to pass an order of detention, the Courts cannot be made substitutes of detaining authorities to inquire into the mind of the detaining authority to suggest whether the detention orders are necessary to be passed."

            6.14        In     the         case     of        Mukeshbhai





 C/SCA/11205/2021                                       JUDGMENT DATED: 13/09/2021



            Versibhai      Desai      (supra),         the      appeal         was
            filed by the concerned                   appellant         against
            the    order    passed       by     the     learned          Single

Judge by which the petition filed by the concerned petitioner at pre-detention or pre-execution stage was dismissed, the Division Bench has considered similar type of submissions canvassed by learned advocate of the present petitioners and after considering the various decisions rendered by the Hon'ble Supreme Court dismissed the Letters Patent Appeal. The Division Bench has observed in paragraph 25 as under:

"25. In the present case, the appellant, herein, thought fit to challenge the detention order at the preexecution stage without having knowledge about the reasons and / or grounds for issuance of the detention order, and therefore, could not have questioned the validity and/or sufficiency of the reasons for issuance of the impugned detention order, at that stage. In the absence of service of the impugned detention order, the relevant materials, containing the reasons and / or grounds for issuance of the said impugned order of detention, could not be disclosed to the appellant nor the learned Single Judge had any opportunity to examine such materials, at that stage. Indisputably, at the preexecution stage, the scope for challenging the order of detention is very limited. An order of detention can be struck down at the preexecution stage, in the rarest of rare case on certain specified limited

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

grounds, which have been summarized by the Hon'ble Supreme Court of India in the case of Additional Secretary to the Government of India Vs. Smt. Alka Subhash Gadia&Anr.",(Supra)."

As per the aforesaid observation of the Division Bench, the concerned appellant-petitioner could not have questioned the validity/sufficiency of the reasons for issuance of the detention order at pre-execution stage as the petitioner was not having any knowledge about the reasons and/or grounds for issuance of the detention order. In the present case, admittedly till date, the order of detention has not been passed against the petitioner.

6.15 The Division Bench has, thereafter, observed in paragraph 31 which reads as under:

"31. It is clear that the Court was also of the opinion that in some genuine and exceptional cases, power can be exercised by the Courts to interfere with the detention order even at the preexecution stage. However, the detenu cannot claim such exercise of power as a matter of "right" and it is purely a discretion of the Court, which has to be exercised judicially on well settled principles. This is so stated in the following words:

"32. Thirdly, in the rare cases where the detenu, before being served with them, learns of the detention order

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

and the grounds on which it is made, and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the pre- execution stage, of course, on the very limited grounds stated above. The Court no doubt even in such cases is not obliged to interfere with the impugned order at that stage and may insist that the detenu should first submit to it. It will, however, depend on the facts of each case. The decisions and the orders cited above show that in some genuine cases, the Courts have exercised their powers at the pre-execution stage, though such cases have been rate. This only emphasises the fact that the courts have power to interfere with the detention orders even at the pre- execution stage but they are not obliged to do to not will it be proper for them to do so save in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well-settled principles."

Thus, from the aforesaid observation, it can be said that in some genuine and exceptional case, the powers can be exercised by the Courts to interfere with the detention order even at the pre- execution stage. However, the detenu cannot claim such exercise of power as matter of right and it is purely discretion of the Court which has to be exercised judicially on well settled principles.

6.16 In the facts of the present case,

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

as discussed hereinabove, the petitioner cannot ask or claim as a matter of right that this Court shall exercise the powers before even the detention order is passed against the petitioner.

6.17 In the case of Bhaurao Punjabrao Gawande (supra), the Hon'ble Supreme Court has observed in paragraphs 42, 62 and 63 as under:

"42. On this question, our attention has been invited by the learned counsel for both the sides to several decisions of this Court. Having gone through those decisions, we are of the view that normally and as a general rule, an order of detention can be challenged by the detenu after such order as also the grounds of detention have been received by him and the order is executed. In exceptional cases, however, a High Court or this Court may exercise extraordinary powers to protect a person against an illegal invasion of his right to freedom by protecting him while still he is free by issuing an appropriate writ, direction or order including a writ in the nature of mandamus questioning an order of detention and restraining the authorities from interfering with the right of liberty of an individual against whom such order is made.

62. The counsel relied upon certain other decisions wherein the order was quashed and set aside. There, however, the order was executed and the detenu surrendered. As already held by us, at the second stage i.e. after the order of detention is executed and the

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

person is served with the grounds of detention, he can challenge such order and the court will decide the legality or otherwise of the action.

63. From the foregoing discussion, in our judgment, the law appears to be fairly well settled and it is this. As a general rule, an order of detention passed by a detaining authority under the relevant "preventive detention" law cannot be set aside by a writ court at the pre-execution or pre- arrest stage unless the court is satisfied that there are exceptional circumstances specified in Alka Subhash Gadia. The Court must be conscious and mindful of the fact that this is a "suspicious jurisdiction" i.e. jurisdiction based on suspicion and an action is taken "with a view to preventing" a person from acting in any manner prejudical to certain activities enumerated in the relevant detention law. Interference by a court of law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a writ court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order."

Thus, from the aforesaid observation made by the Hon'ble Supreme Court, it is clear that interference by a Court of law at the pre-execution stage must be an exception rather than a rule and such an exercise can be undertaken by a writ Court with extreme care, caution and circumspection.

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

6.18 In absence of any grounds of detention, even before the order of detention is passed, it cannot be said that the grounds of detention are vague, extraneous and/or irrelevant. Thus, this Court is of the view that the case of the petitioner does not fall under Grounds III and IV of case of Alka Gadia (supra).

6.19 It is also well settled that equitable jurisdiction under Article 226 of the Constitution of India which is discretionary in nature should not be exercised ordinarily where the proposed detenu successfully evades the service of the order. If, in every case, the detenue is permitted to challenge and seek stay of the operation of the order before its execution, the very purpose of the order and the law under which it is made will be frustrated. However, as observed hereinabove, powers can be exercised in exceptional and rare cases if the case of the detenu falls under any of the categories mentioned in the decision rendered by the Hon'ble Supreme Court in the case of Alka Gadia (supra).

10. In the judgment dated 08.09.2021 in case of Iqbal

@ Aslam Umarbhai Taili (supra), this Court has

observed in Paragraph Nos.24, 25, 28, 30 and 31 as

under,

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

"24. From the aforesaid decisions rendered by the Hon'ble Supreme Court, it can be said that if the order of detention is challenged at pre-execution stage under Article 226 of the Constitution of India, the High Court by way of self-imposed restriction may examine as to whether the case is covered by the guidelines laid down by the Hon'ble Supreme Court in case of Alka Subhash Gadia (supra) and, thereafter, may call for relevant record from the Detaining Authority but such would depend upon sound exercise of judicial discretion of the High Court under Article 226 of the Constitution of India and it cannot be said that in all cases, it would be obligatory for the High Court to satisfy itself as to whether the detention order is passed in consonance with the scheme of the enactment, under which, the detention order is passed. As a general rule, an order of detention passed by the Detaining Authority under the relevant preventive detention law cannot be set aside by the Writ Court at the pre-execution or pre-arrest stage unless the Court is satisfied that there are exceptional circumstances as specified in case of Alka Subhash Gadia (supra). The interference by the Court at the stage of pre-execution must be an exceptional rather than a rule and such an exercise can be undertaken by the Writ Court with extreme

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

care, caution and circumspection. It is clear that the detenue cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such orders. It is further clear that if in every case, a detenue is permitted to challenge and seek stay of operation of the order before its execution, very purpose of the order and the law under which it is to be made, will be frustrated.

25. It is also pertinent to note that in exceptional cases, the Courts can exercise the power and, thereafter, interfere with the order of detention even at pre- execution stage, however, the detenue cannot claim such right as a matter of fact and it is purely a discretion of the Court, which has to be exercised judicially on well settled principles.

Further, it appears from the averments made in the petition that the petitioner is having apprehension that the order of detention will be passed against him and, therefore, burden is shifted upon the Court to inquire into from the respondent - Detaining Authority as to whether there is case for the Detaining Authority to pass an order of detention or not. This Court has already observed in the decision rendered on 03.12.2020 in Special Civil Application No.13681/2020 that the Courts cannot be

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

made substitutes of detaining authorities to inquiry into the mind of the detaining authority to suggest whether the detentions orders are necessary to be passed. Even the aforesaid order dated 03.12.2020 passed by this Court in Special Civil Application No.13681/2020 has attained finality.

28. As observed hereinabove, it is not in dispute that five different FIRs have been filed against the petitioner and in the facts of the present case, this Court is of the view that the case of the petitioner does not fall within Clause - III & V of the guidelines issued by the Hon'ble Supreme Court in case of Alka Subhash Gadia (supra). Further, the case of the petitioner cannot be treated as rare or exceptional case. Hence, this Court is not inclined to exercise of the powers under Article 226 of the Constitution of India at pre-detention/ pre-execution stage in favour of the petitioner. At this stage, this Court would like to refer to the decision rendered by the Hon'ble Suprem Court in case of Bhaurao Punjabrao Gawande (supra), wherein the Hon'ble Supreme Court

as under, "36. Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

conscious of the practical need of preventive detention with a view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand and security and safety of the country and interest of the society on the other hand.

Security of State, maintenance of public order and services essential to the community, prevention of smuggling and black marketing activities, etc. demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life.

            42.    On    this       question,            our        attention          has
                   been    invited          by      the        learned         counsel
                   for     both           the        sides            to       several

decisions of this Court. Having gone through those decisions, we are of the view that normally and as a general rule, an order of detention can be challenged by the detenu after such order as also the grounds of detention have been received by him and the order is executed. In exceptional cases, however, a High Court or this Court may exercise extraordinary powers to protect a person against an illegal invasion of his right to freedom by protecting him while still he is free by issuing an appropriate

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

writ, direction or order including a writ in the nature of mandamus questioning an order of detention and restraining the authorities from interfering with the right of liberty of an individual against whom such order is made.

63. From the foregoing discussion, in our judgment, the law appears to be fairly well- settled and it is this. As a general rule, an order of detention passed by a Detaining Authority under the relevant 'preventive detention' law cannot be set aside by a Writ Court at the pre-execution or pre- arrest stage unless the Court is satisfied that there are exceptional circumstances specified in Alka Subhash Gadia. The Court must be conscious and mindful of the fact that this is a 'suspicious jurisdiction' i.e. jurisdiction based on suspicion and an action is taken 'with a view to preventing' a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a Court of Law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a Writ Court with extreme care, caution and circumspection. A detenu cannot

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order."

30. It is also well settled that equitable jurisdiction under Article 226 of the Constitution of India, which is discretionary in nature, should not be exercised ordinarily where the proposed detenue successfully evades the service of the order. If, in every case, the detenue is permitted to challenge and seek stay of the operation of the order before its execution, the very purpose of the order and the law under which it is made, will be frustrated. However, as observed hereinabove, the powers can be exercised in exceptional and rate cases if the case of the detenue falls under any of the categories mentioned in the decision rendered by the Hon'ble Supreme Court in case of Alka Subhash Gadia (supra).

31. Even as per the decision of the Full Bench of this Court in case of Vijaysinh @ Gatti Pruthvisinh Rathod (supra), the Court is not obliged and/or bound to call for the original file, order of detention and the grounds for detention to satisfy itself whether the order of detention is sustainable or not. Therefore in the facts of the present case also, this Court is not inclined to call for the file and/or to

C/SCA/11205/2021 JUDGMENT DATED: 13/09/2021

examine the proposed order of detention."

11. Thus from the aforesaid observations made by this

Court, it is clear that this Court is not obliged

and/or bound to call for the original file, order

of detention and the grounds for detention to

satisfy itself whether the order of detention is

sustainable or not. In the present case, this

Court is not inclined to call for the file and/or

to examine the proposed order of detention. It is

not in dispute that six different FIRs have been

filed against the petitioner, therefore, this