Gujarat High Court

Iqbal @ Aslam Umarbhai Taili vs State Of Gujarat on 13 September, 2021

Bench: Vipul M. Pancholi

     C/SCA/13086/2021                                  JUDGMENT DATED: 13/09/2021



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
        R/SPECIAL CIVIL APPLICATION NO.                13086 of 2021

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI   :    Sd/-
=======================================================

1  Whether Reporters of Local Papers may be      NO
   allowed to see the judgment ?
2 To be referred to the Reporter or not ?        NO
3 Whether their Lordships wish to see the        NO
   fair copy of the judgment ?
4 Whether this case involves a substantial
   question of law as to the interpretation      NO
   of the Constitution of India or any
   order made thereunder ?
=======================================================
              IQBAL @ ASLAM UMARBHAI TAILI
                         Versus
                    STATE OF GUJARAT
=======================================================
Appearance:
MR. RAHUL R DHOLAKIA(6765) for the Petitioner(s) No. 1
MS JYOTI BHATT AGP (99) 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 for the

following reliefs,

"(A) xxx xxx xxx.

(B) YOUR Lordships be pleased to issue writ of mandamus or any other appropriate, writ order or direction and be pleased to direct the detaining authority to place on record of this petition, the order & grounds of

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detention passed against the petitioner and further be pleased to quash and set aside order of detention passed against the petitioner under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 Act by respondent authorities in purported exercise of powers under the provisions of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 Act at pre- execution stage as being illegal, invalid, null and void, arbitrary, without jurisdiction and competence, suffering from legal mala fides and violative of Art. 14, 19 and 21 of the Constitution of India; (C) Pending admission hearing and final disposal of this petition, YOUR Lordships be pleased to stay the further operation, implementation and execution of the order of detention passed by the respondent no. 2 against the petitioner pending the admission, hearing and final disposal of this petition;

(D) xxx xxx xxx."

2. Heard learned advocate, Mr. Rahul Dholakia for the

petitioner and learned AGP Ms. Jyoti Bhatt for the

respondents.

3. When the matter is called out, learned advocate

for the petitioner has fairly pointed out that the

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case of the petitioner is identical to the

petitioner of writ petition being Special Civil

Application No.12983/2021 filed by the co-accused,

in which, this Court, after considering the

detailed submissions canvassed by learned advocate

for the said petitioner and after considering the

decisions rendered by the Hon'ble Supreme Court,

the Full Bench of this Court and the Division

Bench of this Court, was pleased to reject the

said petition by detailed judgment dated

08.09.2021.

4. However at this stage, learned advocate for the

petitioner has placed on record a copy of

communication dated 16.07.2021 addressed by the

Direct General of Police, Gandhinagar to all

Commissioner of Police, Superintendent of Police

and other authorities. After referring to the said

communication, it is contended that on the basis

of fir FIRs registered against the petitioner, the

order of detention will be passed against the

petitioner by the detaining authority.

5. On the other hand, learned AGP appearing for the

respondents has also fairly submitted that the

petitioner is the co-accused of the petitioner,

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who has filed Special Civil Application

No.12983/2021, which has been rejected by this

Court by passing detailed order. It is, therefore,

urged that this petition may also not be

entertained by this Court.

6. I have considered the submissions canvassed by

learned advocates appearing for the parties and I

have also gone through the material placed on

record.

7. As stated above, the case of the petitioner is

squarely covered by the judgment dated 08.09.2021

rendered by this Court in Special Civil

Application No.12983/2021 and relevant paragraphs

i.e. Paragraph Nos.24 to 31 read as under,

"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

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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 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

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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 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.

26. It is also contended by learned Senior Counsel, Mr. Nanavati that the preventive detention endangers the fundamental rights of personal liberty of a citizen as guaranteed under Article 21 of the Constitution of India. The preventive

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detention can be justified or satisfied only if there is cogent and convincing evidence or material on record. It was also submitted by learned Senior Counsel that mere registration of the FIRs before different Police Stations is not sufficient to pass the order of preventive detention. It is further contended that if the person, against whom the order of preventive detention has been passed, comes to the Court at the pre-execution stage and satisfies that the detention order is illegal, there is no reason as to why the Court should stay its hand and allow such person to come to jail even though he is bound to be released subsequently.

It is pertinent to note at this stage that similar type of contentions were raised by the concerned advocate appearing for the appellant (proposed detenue) in Letters Patent Appeal No.108/2020 and the Division Bench of this Court has considered the aforesaid contentions raised by the concerned advocate and, thereafter, dismissed the said Letters Patent Appeal.

27. Here in the present case, it is presumed by the petitioner that five different FIRs filed against him under the provision of the Essential Commodities Act are required to be quashed and set aside as the provision of the Essential Commodities Act would not be attracted. Hence, the proposed

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order of detention, which is likely to be passed against the petitioner under the Act of 1980 on the basis of the said FIRs, is to be quashed and set aside. This Court is of the view that the aforesaid contention is misconceived. First of all, the petitioner has presumed that all the FIRs, which are filed against him, are not tenable and, therefore on the basis of the same, the order of detention cannot be passed against the petitioner. This Court is of the view that it is not open for this Court in the present petition to examine as to whether all five FIRs, which are filed against the petitioner, are in fact required to be quashed and set aside as the provision of the Essential Commodities Act are not applicable to the facts of the petitioner.

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

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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 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

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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.

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

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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 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."

29. Learned Senior Counsel has placed reliance upon the decision rendered by the Hon'ble Supreme Court in case of Subhash Popatlal Dave (supra), wherein the Hon'ble Supreme Court has held that the order of preventive detention can be challenged beyond five grounds, which have been enumerated in the judgment rendered in case of Alka Subhash Gadia (supra) even at pre-execution stage. However in the present case, it is the specific case of the petitioner that his case falls under the Categories - III & V of the guidelines issued by the Hon'ble Supreme Court in case of Alka Subhash Gadia (supra) and not in any other category. Thus, the aforesaid decision would not

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render any assistance to the petitioner in the facts of the present case. It is pertinent to note that this Court is of the view that in view of the aforesaid discussion, the case of the petitioner does not fall in the aforesaid categories and the case of the petitioner is not rare or exceptional case. Hence, this Court is not inclined to exercise the power under Article 226 of the Constitution of India.

    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

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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 examine the proposed order of detention."

8. At this stage, it is required to be mentioned that

by placing on record a communication dated

16.07.2021, the petitioner has shown apprehension

that the order of detention will be passed against

him and, hence, this Court may protect the

petitioner. It is, however, pertinent to note at

this stage that though such communication is

placed on record, the petitioner is not aware that

the order of detention is passed against him or

not. Therefore in absence of such document, it is

not open for this Court to call for the records.

In this regard, this Court would like to discuss

with regard to the judgment of Full Bench in case

of Vijaysinh @ Gatti Pruthvisinh Rathod Vs. State

of Gujarat, reported in 2015 (1) GLR 703, wherein

it is observed in Paragraph No.9.1 as under,

"[9.1] The sum and substance of the aforesaid discussion would be that in a petition under Article 226 of the Constitution of India challenging the order of detention at

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pre-detention / pre-execution stage as such 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. However, in an appropriate case being made out on the basis of the averments on affidavit and on the grounds set out in the memo of petition, the Court in its discretion would have jurisdiction to call for the original file, order of detention and grounds for detention so as to satisfy itself the challenge to the order of detention at pre- execution stage on the grounds which may be available under the law at the pre- detention / pre-execution stage, however such powers may be exercised in exceptional and rare cases and such exercise can be undertaken by a Writ Court with extreme care, caution and circumspection.

At the same time, in a petition under Article 226 of the Constitution of India challenging the order of detention at pre- execution stage, the detenu as a matter of right cannot seek a Writ of Mandamus directing the detaining authority to produce the original file, order of detention and grounds of detention as otherwise also, as observed by the Hon'ble Supreme Court in catena of decisions, the detenu is not entitled to the grounds of

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detention unless the order of detention is served and executed upon the detenu."

9. 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 five different FIRs have been

filed against the petitioner, therefore, this