Chabildas @ Raja Kaushalsing ... vs State Of Gujarat
2023 Latest Caselaw 2888 Guj

     C/SCA/6256/2023                               ORDER DATED: 12/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6256 of 2023

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                CHABILDAS @ RAJA KAUSHALSING RAJPUT
                               Versus
                     STATE OF GUJARAT & 2 other(s)
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Appearance:
MR SANDEEP PATEL for MR VAIBHAV A VYAS(2896) for the Petitioner.
MR ASHUTOSH DAVE, AGP for the Respondents.
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
       and
       HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                          Date : 12/04/2023
                           ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. By filing present petition, the petitioner has prayed for the following reliefs:-

"8(A) Quash and set aside the order of preventive detention at pre-execution stage passed by the respondents on the basis of above referred offence registered against the petitioner, declaring the same to be illegal, arbitrary, malafide, null and void, and

(B) Pending admission, hearing and final disposal of the present petition, YOUR LORDSHIPS be pleased to stay the implementation, execution, operation and enforcement of the order of preventive detention during the pendency of this petition,"

2. Thus, the prayer clause suggests that the petitioner is seeking quashing and setting aside of the order of preventive detention at pre-exeuction stage. The petitioner has

C/SCA/6256/2023 ORDER DATED: 12/04/2023

apprehension that he would be detained under the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as "PASA Act"), in view of registration of one FIR for the offence under Prohibition Act, as mentioned in paragraph 3.2.

3. Learned advocate, Mr.Sandip Patel for Mr.Vaibhav Vyas has submitted that the petitioner is apprehending his arrest under PASA Act since it is presumed that detention order will be passed against him. On a specific query raised by this Court with regard to maintainability of the writ petition in absence of any order passed under PASA, learned advocate Mr.Sandip Patel has placed reliance on various judgments of the Supreme Court as well as of this Court, which are referred hereunder:-

1. Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852]

2. Additional Secretary to the Government of India v.

Alka Subhash Gadia, 1992 Supp (1) SCC 496.

3. Deepak Bajaj v. State of Maharashtra, (2008) 16 SCC

14.

4. Rekha v. State of Tamil Nadu through Secretary to Government, (2011) 5 SCC 244.

5. Vijay @ Gatti Pruthvisinh Rathod v. State of Gujarat (Special Civil Application No.5664 of 2014)

6. Ajimkhan @ Ajamkhan Sultankhan Pathan v. State of Gujarat, (Letters Patent Appeal No.173 of 2016).

7. Mukeshbhai Versibhai Desai v. State of Gujarat (Special Civil Application No.108 of 2020)

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8. Bharat @ Gagu Hajabhai Muchad (Rabari) v. State of Gujarat. (Special Civil Application No.25336 of 2022)

4. It is, thus, submitted that the writ petition is maintainable.

5. Per contra, learned AGP has placed reliance on the judgment and order of the Division Bench of this Court dated 08.10.2018 passed in Letters Patent Appeal No.1281 of 2018, and submitted that the present writ petition is not maintainable since no detention order is passed.

6. We have considered rival submissions as well as judgments on which reliance is placed by the petitioner. A bare perusal of the aforesaid judgments would reveal that it pertains to order of detention, which is passed but not yet executed. None of the judgment suggests that the writ petition can be entertained in absence of any detention order. In case of Alka Gadia (supra), the Supreme Court has held thus:-

"32. This still leaves open the question as to whether the detenu is entitled to the order of detention prior to its execution at least to verify whether it can be challenged at its pre-execution stage on the limited grounds available. In view of the discussion aforesaid, the answer to this question has to be firmly in the negative tor Various reasons. In the first instance, as stated earlier, the Constitution and the valid law made thereunder do not make any provision for the same. On the other hand,

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they permit the arrest and detention of a person without furnishing to the detenu the order and the grounds thereof in advance. Secondly, when the order and the grounds are served and the detenu is in a position to make out prima facie the limited grounds on which they can be successfully challenged, the courts, as pointed out earlier, have power even to grant bail to the detenu pending the final hearing or his petition. Alternatively, as stated earlier, the court can and does hear such petition expeditiously to give the necessary relief to the detenu.

Thirdly, in the rare cases where the detenu, before being served with them, learns of the detention order 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 rare. This only emphasis's 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 so nor 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

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of the court and it has to be exercised judicially on well settled principles."

7. A bare reading of the observations made by the Apex Court would reveal that, in rare cases where detenu, before being served with the detention order, learns of the detention order 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 stage of pre-execution, of course, on the very limited grounds, as stated in the said judgment. Thus, entire observation pertains to an order of detention, which is passed and the detenu learns of such order but is not executed, in that case, in very rare cases the Court can entertain the writ petition. Law enunciated by the Apex Court in the case of Alka Gadia (supra) is followed in various decisions as mentioned herein above.

7.1 This Court in the aforementioned decision on which the reliance is placed by the petitioner in Full Bench judgment dated 3.12.2014 passed in Special Civil Application No.5664 of 2014 reported in 2015 (1) GLR 703 has considered the law enunciated by the Apex Court in Alka Gadia's case (supra). In paragraph 9.1, the Full bench has observed thus:-

"[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 pre-detention / pre-execution stage as such the Court

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

8. Thus, it is well settled proposition of law that the Court can call for the original file and the order of detention in order to satisfy its challenge only in cases where such order of

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detention, though passed but is not executed.

9. At this stage, it would be apposite to refer to the observation made in the order dated 08.10.2018 by the Division Bench of this Court rendered in Letters Patent Appeal No.1281 of 2018, which reads as under:-

"4. During the course of hearing, learned counsel appearing for the appellant has fairly admitted that there is no order of detention passed under the provisions of PASA Act of 1985. If no such order of detention is passed, we fail to understand how such a petition, seeking the relief as sought for, could have been filed. While it is open for the appellant to file such a petition, when the order of detention is passed, if there is any ground available to challenge the same before the same is executed, but at the same time, if order of detention is not passed under the provisions of PASA Act, no such petition can be maintained seeking the relief as sought for."

10. In the present case, the petitioner has prayed for setting aside of the detention order in absence of the detention order having been passed. It is prayed that the detention order at pre-execution stage should be set aside. However, the petition is absolutely silent with regard to any order of detention having been passed on the basis of FIR, which is registered under the provisions of Prohibition Act. Merely because the petitioner is apprehending arrest under PASA Act, the writ

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petition cannot be entertained, in absence of specific statement made in the writ petition that though detention order is passed, same is not executed, and hence, writ petition may be entertained. In absence of such averments and in absence of any detention order having been passed and no statement is made in the petition that though such order is passed, it is not yet executed, present writ petition cannot be entertained. Hence, present petition is rejected.

(A. S. SUPEHIA, J)

(DIVYESH A. JOSHI,J) R.S. MALEK