Amit Mohanbhai Desai vs Commissioner Of Police
2023 Latest Caselaw 4044 Guj

       C/SCA/8824/2023                                       ORDER DATED: 05/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
               R/SPECIAL CIVIL APPLICATION NO. 8824 of 2023
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                            AMIT MOHANBHAI DESAI
                                   Versus
                           COMMISSIONER OF POLICE
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Appearance:
MS CHANDNI G KANTHARIYA(12215) for the Petitioner(s) No. 1
VIRAL K VASHI(8220) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MR ROHAN RAVAL, AGP for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
           and
           HONOURABLE MR. JUSTICE M. R. MENGDEY
                      Date : 05/06/2023
                       ORAL ORDER

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

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

"17 A). Your Lordships may be pleased to kindly issue Writ of Mandamus and / or a Writ in the nature of Mandamus or any other appropriate Writ, order or direction to the respondents directing them to produce relevant papers and records, order and grounds of detention which is likely to be passed against the present petitioner in connection with two offences being (1) Khadiya C.R.NO. 11191005210893 2021, of Dated 05.07.2021 under the sections of 323, 294 (KH), 506(2), 452, 143, 149, 188 Indian Penal code & sec 135 (1) G.P.Act & Section 51 (B) Disaster Management Act & Section 3 Epidemic Diseases Act registered at Khadiya Police Station, Dist- Ahmedabad then after second offence being C.R.NO. 11191005220457 23.11.2022 of 2022, Dated- under the sections 325, 294 (kh), 323, 114 of Indian penal code & section 135 (1) G.P. Act registered Khadiya Police Station, Dist- Ahmedabad, and after perusing the grounds of detention and the role of the proposed petitioner detenu, proposed order of detention which is passed by the respondent no.1 and to be approved by the State Government, the respondent no.2, may be quashed and set aside in the interest of justice.

B) Pending hearing, admission and final disposal of this petition, this Hon'ble Court would be pleased to protect the petitioner and direct the

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respondents not to detain the petitioner in pursuance to the proposed order of detention under the PASA Act which passed by the respondent no.1 and to be approved by the respondentno.2, in the interest of justice."

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

3. Learned advocate, Ms.Kanthariya has submitted that the petitioner is apprehending his arrest under the 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 the PASA, learned advocate Ms.Kanthariya has submitted that the petitioner is apprehending arrest on proposed detention order. It is, thus, submitted that the writ petition is maintainable.

4. 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 well as maintainable since no detention order is passed.

5. We have considered the rival submissions. In the case of Additional Secretary to the Government of India vs. Alka Subhash Gadia, 1992 Supp. (1) SCC 496 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

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

6. 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. The 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

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enunciated by the Apex Court in the case of Alka Gadia (supra) is followed in various decisions as mentioned herein above.

6.1. 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 detention, though passed but is not executed.

7. 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."

8. 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

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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, the present writ petition cannot be entertained. Hence, the present petition is rejected.

Sd/-

(A. S. SUPEHIA, J)

Sd/-

(M. R. MENGDEY,J) ABHISHEK/47