Rakesh Alias Rako Jayantibhai ... vs State Of Gujarat
2023 Latest Caselaw 5315 Guj

     C/SCA/11455/2023                              ORDER DATED: 07/07/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 11455 of 2023
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                 RAKESH ALIAS RAKO JAYANTIBHAI THAKOR
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR HITESH P PRAJAPATI(12819) for the Petitioner(s) No. 1
MR.KISHAN PRAJAPATI(7074) for the Petitioner(s) No. 1
MR ROHAN RAVAL, AGP for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
       and
       HONOURABLE MR. JUSTICE M. R. MENGDEY

                          Date : 07/07/2023
                           ORAL ORDER

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

1. The present petition is filed for the following prayer:-

"20A) That this Hon'ble Court may be pleased to allow this present Special Civil Application by issuing appropriate writ of mandamus or any other appropriate writ, order or direction and be please to quash and set aside detention order at pre- execution stage passed by respondent no 2 under the provision of section 3(2) of the Gujarat Prevention Of Anti Social Activities Act, 1985; as same being illegal, invalid, null and void, arbitrary, suffers from non application of mind , without jurisdiction and competence, suffering from malafides and violative of art 14, 19, and 21 of the constitution of India."

2. Thus, the prayer suggest that the petitioner is seeking quashing and setting aside the order

C/SCA/11455/2023 ORDER DATED: 07/07/2023

of detention at pre-execution stage, in absence of any order being annexed in the petition.

3. Learned AGP has forwarded a communication of the Police Inspector, Sayajigunj Police Station, Vadodara dated 07.07.2023, wherein it is stated as on today, no detention order is passed. The said communication is ordered to be taken on record.

4. 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.

5. 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

C/SCA/11455/2023 ORDER DATED: 07/07/2023

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."

6. 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 FIRs. Merely because the petitioner is apprehending arrest under the PASA Act, the writ 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, the writ petition may be entertained. In absence of such averments and in absence of any detention order having been passed, the present writ petition cannot be entertained.

7. Under the circumstances, the present writ petition is rejected with a cost of Rs.10,000/-, which shall be deposited before the Gujarat State Legal Services Authority within a period of two weeks from the date of receipt of copy of writ of

C/SCA/11455/2023 ORDER DATED: 07/07/2023

this order. If the cost is not deposited within a period of two weeks, Registry shall issue the recovery certificate and recover the same by way of land revenue from the petitioner.

Sd/-

(A. S. SUPEHIA, J)

Sd/-

(M. R. MENGDEY,J) NVMEWADA/32