Pankaj Surendrakumar Oza vs State Of Gujarat
2023 Latest Caselaw 2618 Guj

       C/SCA/5406/2023                                    ORDER DATED: 29/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
               R/SPECIAL CIVIL APPLICATION NO. 5406 of 2023
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                         PANKAJ SURENDRAKUMAR OZA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR HR PRAJAPATI(674) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR ADITYASINH JADEJA, AGP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
           and
           HONOURABLE MR. JUSTICE D. A. JOSHI
                      Date : 29/03/2023
                       ORAL ORDER

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

1. On a specific query raised by this Court to the learned advocate Mr.Prajapati appearing for the petitioner with regard to the maintainability of the present petition before passing of the detention order, he, while referring to the contents made in paragraph no.3 of the writ petition, has submitted that the detention authority has already passed an order, but the same is not executed. He has placed reliance on the judgment of the Full Bench of this Court in the case of Vijaysinh @ Gatti Pruthvisinh Rathod vs. State of Gujarat, 2015 (1) GLR 703 and also on the judgment dated 18.06.2020 passed in Letters Patent Appeal No.108 of 2020 and has submitted that the writ petition is always maintainable at the pre-execution stage of passing of the detention order. He has referred to the observations made by the Division Bench as well as the Full Bench. Thus, he has submitted that as per the observations made by the Apex Court in the case of Additional Secretary to the Government of India and others vs. Smt. Alka Subhash Gadia and Another, 1992 supp (1) SCC 496, which are referred by the Division

C/SCA/5406/2023 ORDER DATED: 29/03/2023

Bench as well as the Full Bench, the writ petition is maintainable. Thus, it is asserted by the learned advocate Mr.Prajapati, on instructions, that the detention order is already passed, but the same is not executed and hence, the writ petition would be maintainable.

2. Per contra, learned AGP Mr.Jadeja, while placing reliance on the order dated 08.10.2018 passed in Letters Patent Appeal No.1281 of 2018, has submitted that the writ petition is not maintainable since no order of detention is passed. It is submitted that as per the communication received by him dated 28.03.2023, no detention order is passed under the Prevention of Anti-Social Activities Act, 1985 (for short "the PASA") and hence, the writ petition may be rejected with cost by making a false statement.

3. We have heard the learned advocates appearing for the respective parties.

4. Despite being a specific query raised by this Court with regard to maintainability of the writ petition in wake of the fact that no detention order is passed, learned advocate Mr.Prajapati, on instructions, has insisted that the detention order is already passed, however, the same is not executed and in this regard, he has pointed out the arguments made in paragraph no.3 of the writ petition.

5. Learned AGP Mr.Jadeja has forwarded a communication dated 28.03.2023. The same is ordered to be taken on record, in which it is specifically stated that no detention order is passed against the petitioner under the PASA as on today.

C/SCA/5406/2023 ORDER DATED: 29/03/2023

6. At this stage, it would be apposite to record the observations made by the Division Bench in the order dated 08.10.2018 passed in Letters Patent Appeal No.1281 of 2018. The same are 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.

7. We have also perused the judgment passed by the Full Bench in the case of Vijaysinh @ Gatti Pruthvisinh Rathod (supra) as well as the order dated 18.06.2020 passed in Letters Patent Appeal No.108 of 2020. A bare perusal of the aforesaid judgment and order passed by the Full Bench as well as by the Division Bench, reveal that the same are premised on the pre-execution of such pre-detention order, which is already passed.

8. Both the Division Bench as well as the Full Bench have placed reliance on the law enunciated by the Apex Court in the case of Smt. Alka Subhash Gadia and Another (supra). The Full Bench in case of Vijaysinh @ Gatti Pruthvisinh Rathod (supra), after survey of various judgments, including the case of Alka Subhash Gadia and Another (supra), has observed thus:-

"9. Having heard learned advocates appearing on behalf of the respective parties and considering the aforesaid decisions of the Hon'ble Supreme Court and even considering the decision of the Division Bench of this Court in the case of Mancharam Samaram Meena (Supra) and the decision of another Division

C/SCA/5406/2023 ORDER DATED: 29/03/2023

Bench in the case of Chirag @ Vijay Bhikhubhai Chtrabhuj (Supra), we are of the opinion that as there cannot be any controversy and/or dispute that as such the petition challenging the order of detention at pre-detention/pre-

execution stage would be maintainable on the grounds permissible. However, such powers are required to be exercised sparingly and in exceptional cases and on the grounds permissible under the law.

We are of the opinion that the view taken by the Division Bench in the case of Mancharam Samaram Meena (Supra) that in a petition under Article 226 of the Constitution of India challenging the order of detention at pre-execution/pre-detention stage the High Court has no jurisdiction at all to call for the original file, the order of detention and the grounds for detention and to undertake the exercise to satisfy, as to whether the order of detention is sustainable or not is impermissible and beyond the jurisdiction of the High Court, cannot be accepted.

Similarly, even the view taken by the Division Bench in the case of Chirag @ Vijay Bhikhubhai Chtrabhuj (Supra) that while considering the challenge to order of detention at pre-detention/pre-execution stage in a petition under Article 226 of the Constitution of India, it is the bounden duty of the Court and/or the Court is obliged to call for the order of detention for its own perusal to satisfy itself as to validity of the detention order also cannot be accepted. Considering the decisions of the Hon'ble Supreme Court referred to hereinabove and the powers of the High Court under Article 226 of the Constitution of India are very wide and once it is held that the petition at pre- detention/pre-execution stage is maintainable on the ground which may be available under the law, in an appropriate case being made out on the basis of the averments and the grounds set aside in the memo of petition, the Court in exercise of powers under Article 226 of the Constitution of India and so as to satisfy the legality and validity of the order of detention on the grounds which may be available at the pre-detention/pre-execution stage, the Court may in its discretion and subject to its satisfaction call for the relevant file/order of detention/grounds for

C/SCA/5406/2023 ORDER DATED: 29/03/2023

detention at pre-execution stage, however such power shall be exercised sparingly and in exceptional cases and such discretion is to be exercised judicially on well settled principles. However, in all cases the Court is not obliged to do so and undertake such exercise of calling the original file, order of detention and grounds of detention. Similarly, even the detenu cannot claim such exercise of power of calling the order of detention, grounds of detention at pre- detention/pre-execution stage as a matter of right. It is purely discretion of the Court to exercise it's jurisdiction.

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 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."

C/SCA/5406/2023 ORDER DATED: 29/03/2023

9. A bare perusal of the aforesaid observations reveal that this Court, in exercise of powers under Article 226 of the Constitution of India and so as to satisfy the legality and validity of the order of detention on the grounds which may be available at the pre-detention/pre-execution stage, may in its discretion and subject to its satisfaction call for the relevant file/order of detention/grounds for detention at pre-execution stage, however such power shall be exercised sparingly and in exceptional cases and such discretion is to be exercised judicially on well settled principles.

10. Unquestionably, in the present case, no detention order is passed and all the observations made by the Apex Court and the Full Bench as well as the Division Bench are with regard to the orders of detention, which are not yet executed and the Court in exceptional circumstances had called for the original file. Thus, the petitioner has tried to mislead this Court by making a false statement that the writ petition is maintainable at this stage, since the order of detention is passed, however, the same is not executed.

11. Hence, the writ petition is rejected with a cost of Rs.5,000/-, which shall be deposited within a period of 10 days before the Registry of this Court.

Sd/-

(A. S. SUPEHIA, J)

Sd/-

(D. A. JOSHI,J) ABHISHEK/49