Gujarat High Court

Sujatkhan @ Sajju Bashirkhan ... vs State Of Gujarat on 5 May, 2023

Bench: A.S. Supehia

     C/SCA/8499/2023                           ORDER DATED: 05/05/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 8499 of 2023

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                SUJATKHAN @ SAJJU BASHIRKHAN PATHAN
                               Versus
                         STATE OF GUJARAT
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Appearance:
MS AKANKSHA TRIVEDI for MR GAJENDRA P BAGHEL(2968) for the
Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4
MR JAY MEHTA, AGP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
       and
       HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                           Date : 05/05/2023

                            ORAL ORDER

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

1. By filing present petition, the petitioner has prayed for quashing and setting aside the order of preventive detention at pre-execution stage passed by the respondents on the basis of offence registered against him. Thus, 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 FIRs for the offence under Prohibition Act, as mentioned in paragraph 3.

2. Learned advocate, Ms.Trivedi appearing on behalf of Mr.Baghel 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

C/SCA/8499/2023 ORDER DATED: 05/05/2023

this Court with regard to maintainability of the writ petition in absence of any order passed under PASA, learned advocate has submitted that the petition is maintainable.

3. 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.

4. 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. In case of Additional Secretary to the Government of India v. 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 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

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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."

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5. 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.

5.1 This Court in the decision of Full Bench 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 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

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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."

6. 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.

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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 FIR, which is registered under the provisions of Prohibition Act. Merely because the petitioner is apprehending arrest under PASA Act, the writ petition cannot be entertained, in absence of specific statement made in the writ petition that though detention

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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