AI Structured Summary
Not yet generated for this judgment
Judgment
J.B.Pardiwala, J
1 This Letters Patent Appeal under clause 15 of the Letters Patent Act is at the instance of the original writ applicant and is directed against the
judgement and order passed by a learned Single Judge of this Court dated 9th January 2020 in the Special Civil Application No.17158 of 2019, by
which the learned Single Judge declined to entertain the writ application filed by the writ applicant seeking to challenge the purported order of
detention passed under the PASA, 1985 at the pre-execution stage.
2 The appellant herein preferred the Special Civil Application No.17158 of 2019 and prayed for the following reliefs:
“(A) Be pleased to admit this petition,
(B) Be pleased to issue : writ of mandamus or . writ in the nature of mandamus and/or any other appropriate writ/s, order/s and/or direction]: and hold
and declare that the respondents have no power, authority or competence to pass order of preventive detention against the petitioner in view of the
fact: set out in the memo of this petition;
(C) Be pleased to issue a writ of mandamus or : writ in the nature of mandamus and/or any other appropriate writs, order/s and/or direction/s and
direct the respondents not to issue any order of preventive detention against the petitioner in the light of the facts as set out hereinabove in the memo
of this petition;
(d) Pending admission and final disposal of the present petition, be pleased to restrain the respondents, their agents and servants’ from arresting
the petitioner for preventive detention in connection with the first information reports referred in the memo of this petition;
(e) Be pleased to pass such other and further orders as may be deemed fit and proper.
3 It is the case of the writ applicant that he came to know through reliable sources that the respondent No.2 herein i.e. the Commissioner of Police,
Ahmedabad city has passed an order of preventive detention against him in exercise of his powers under Section 3 of the Gujarat Prevention of Anti-
social Activities Act, 1985 (for short, 'the Act, 1985') on the ground that the preventive detention of the writ applicant is essential having regard to his
nefarious activities prejudicial to the maintenance of public law and order.
4 It is the case of the writ applicant that apprehending execution of such order of preventive detention, he had no other option, but to come before this
Court by filing the Special Civil Application No.17158 of 2019.
5 It is the case of the writ applicant that although many First Information Reports have been lodged against him for different offences since 2014
onwards, yet that by itself would not be sufficient to arrive at the subjective satisfaction that the writ applicant deserves to be preventively detained
with a view to maintain public law and order.
6 Thus, the writ application filed by the writ applicant was adjudicated by a learned Single Judge of this Court and vide the impugned judgment and
order dated 9th January 2020, the learned Single Judge rejected the same.
7 While rejecting the writ application, the learned Single Judge made the following observations in para 10 of its impugned judgment:
“Since no order of detention is yet claimed to have been passed by the Authority, as submitted by the petitioner, whether detention order is passed
on sound principles of law or not and whether the said decision is arbitrary or not, cannot be decided in this petition.
8 Thus, it appears from the aforesaid observations of the learned Single Judge that the writ applicant is not sure whether, in fact, any order of
preventive detention has been passed by the respondent No.2 or not. 9 It appears that manifold contentions were raised by the learned counsel
appearing for the writ applicant before the learned Single Judge for the purpose of challenging the order of preventive detention at the pre-execution
stage. The learned Single Judge held as under:
“7. Considering the submissions made by the learned advocate for the petitioner as also the precedents cited at the bar, it is clear that petition at
pre-execution stage is maintainable. However, not a single precedent cited by the learned advocate for the petitioner says that in each case the
petition at pre-execution stage be entertained. Though considering the right to liberty protected by Articles 21 and 22 of the Constitution of India by
catena of decision of the Hon'ble Supreme Court says that the powers under Articles 226 and 32 of the Constitution of India are wide, and are
untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the Courts have
over the years evolved certain self-restraints for exercising these powers.
Considering the continuous unabated criminal activities carried on by the petitioner, though on several occasions as contended by Mr. Mangukiya,
learned advocate for the petitioner, the authority had come out with no proposal to preventively detain him, petitions were disposed of, It did not deter
the petitioner from further carrying it throughout, 6 more cases registered in the year 2019 before different Police stations. It is very clear that his area
of operation is not limited to a particular Police Station. Therefore, it is not a pure and simple property dispute reflected from the FIRs in between
private parties as sought to be contended by the learned advocate for the petitioner. On the contrary, the cases registered against the present
petitioner pertains to not only the offences affecting the human body but also an offence of criminal trespass entering upon land of private individual. 5
cases wherein, complaints have been quashed as contended by Mr.Mangukiya, learned advocate for the petitioner, is out of settlement in between the
parties and not on merit. Therefore, the activity of the petitioner cannot be said to be only a problem of law and order situation but it may potentially
affect the public order too.
The offences committed by the petitioner in the remote past and the orders passed by this Court at pre-execution stage directing not to consider
those cases involved in those petitions, may not be relied on for passing of any order of preventive detention by the Detaining Authority, still the
activities of the petitioner cannot be ignored by this Court while considering petition under Article 226 of the Constitution of India, not at pre-execution
stage but may be at pre-proposal stage. Though stale cases cannot be considered for passing an order of preventive detention, it reflects the nature of
the petitioner and it will certainly deter the Court for granting any relief to him under Article 226 of the Constitution of India where petitioner is also
not sure whether order of detention is passed or not, that too, in a petition filed at pre-execution stage.
This petition is filed only on assumption that order of preventive detention will be passed against the petitioner. However, the foundational facts are
missing in it. If in every case a detenue is permitted to file petition at pre-execution stage and seek stay of operation of the order before it is executed,
the very purpose of the order and of the law under which it is to be made, will be frustrated. Mr. Mangukiya, learned advocate for the petitioner has
failed to show any glaring facts based on which it can be said that no prudent man may even subjectively satisfied for passing an order of preventive
detention. He has further failed to show that it falls within those few cases, limited in scope and number to entertain the petition, that too, at pre-
execution stage. He has failed to make out an exceptional case where not only pre-execution stage but even pre-proposal stage, it would compel this
Court to entertain this petition and exercise its powers of judicial review under Article 226 of the Constitution of India. Since no order of detention is
yet claimed to have been passed by the Authority, as submitted by the petitioner, whether detention order is passed on sound principles of law or not
and whether the said decision is arbitrary or not, cannot be decided in this petition.
10 Being dissatisfied with the impugned judgement and order passed by the learned Single Judge, the writ applicant has come up before this Court
with the present appeal.
● SUBMISSIONS ON BEHALF OF THE APPELLANT:
11 Mr. B.M. Mangukiya, the learned counsel appearing for the appellant vehemently submitted that the learned Single Judge committed a serious
error in declining to entertain the writ application seeking to challenge the order of preventive detention at the pre- execution stage. Mr. Mangukiya
submitted that although various decisions of the Supreme Court, as noted in para 5 of the impugned judgement, were relied upon, yet there is not a
whisper in the entire impugned judgement as to why the case law relied upon on behalf of the writ applicant is not applicable. In other words,
according to Mr. Mangukiya, when as many as five judgements of the Supreme Court were referred to and relied upon, it was obligatory on the part
of the learned Single Judge to have discussed them and record a finding as to how the principles stated therein are not applicable to the case on hand.
12 Mr. Mangukiya vehemently submitted that without any cogent and clinching materials on record, his client cannot be labelled as a dangerous person
as defined under Section 2(c) of the Act, 1985. According to Mr. Mangukiya, “dangerous person†means a person who habitually commits or
attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code. Mr.
Mangukiya pointed out that there is not a single offence registered against his client falling under Chapter XVI of the I.P.C. He pointed out that the
only offences falling within Chapter XVII of the I.P.C. are that of criminal breach of trust punishable under Section 406 of the I.P.C. and cheating
punishable under Section 420 of the I.P.C. According to Mr. Mangukiya, even if ten F.I.Rs. are lodged against his client for the offence of criminal
breach of trust or cheating, that by itself would not make his client a “dangerous personâ€. Mr. Mangukiya vehemently submitted that the exercise
of powers at the end of the respondent No.2 under Section 3 of the Act, 1985 could be termed as mala fide. According to Mr. Mangukiya, the
preventive detention infringes the fundamental right of personal liberty of a citizen as enshrined under Article 21 of the Constitution of India. The
preventive detention can be justified or substantiated only if there is cogent and convincing evidence or material on record. It is argued that mere
registration of F.I.R. for different offences at different police stations is not sufficient to pass an order of preventive detention.
13 Mr. Mangukiya would submit that there are many civil litigations in progress with regard to the property rights, etc. Mr. Mangukiya submitted that
he has furnished the minutest of the details in this regard in the memorandum of the Special Civil Application.
14 Mr. Mangukiya further brought to our notice that his client was sought to be preventively detained under the PASA as a “dangerous personâ€
sometime in 2013. His client had to come before this Court by filing the Special Civil Application No.1579 of 2013. He pointed out that the learned
Single Judge vide order dated 6th January 2014, quashed the impugned order of PASA on the ground that mere registration of F.I.Rs. is not sufficient
to label an individual as a “dangerous personâ€.
15 Mr. Mangukiya would submit that the writ application questioning the legality and validity of an order of preventive detention is maintainable at the
pre-execution stage. To make good his submission, he seeks to rely upon the following judgements:
[1] Additional Secretary to the Government of India and others Versus Smt. Alka Subhash Gadia and Another reported in 1992 supp (1) Supreme
Court Cases 496
[2] Deepak Bajaj Vs. State of Maharashtra & Anr. reported in AIR 2009 SC 628,
[3] Subhash Popatlal Dave Versus Union of India and Another reported in AIR 2012 SC 3370
16 Mr. Mangukiya vehemently submitted that the impugned detention order can be challenged before this Court in a writ petition, even at the pre-
execution stage in view of the grounds 5(iii) and (iv) mentioned in the decision of the Supreme Court in the case of Alka Gadia (supra). He would
submit that the grounds enumerated in Alka Gadia (supra) are not exhaustive, but, are merely illustrative. According to Mr. Mangukiya, if a person
against whom an order of preventive detention has been passed, comes to the Court at the pre-execution stage and satisfies the Court that the
detention order is clearly illegal, there is no reason to why the Court should stay its hands and allow such a person to come to jail even though he is
bound to be released subsequently.
17 In such circumstances referred to above, Mr. Mangukiya prays that the impugned order passed by the learned Single Judge be quashed and set
aside and the appeal be allowed. Mr. Mangukiya prays that if any order of preventive order has been passed against the appellant, then the same may
be quashed and set aside.
● SUBMISSIONS ON BEHALF OF THE STATE:
18 Mr. Dharmesh Devnani, the learned Assistant Government Pleader appearing for the State has vehemently opposed this appeal. Mr. Devnani
submitted that no error, not to speak of any error of law could be said to have been committed by the learned Single Judge as the writ applicant seeks
to challenge the order of preventive detention at the pre- execution stage.
19 Mr. Devnani submitted that there is nothing on record to indicate that the writ applicant has been able to substantive that an order of preventive
detention has been passed by the respondent No.2. According to Mr. Devnani, the frequent visits of a police officer at the residence of the appellant
by itself is not sufficient to come to the conclusion that the appellant is likely to be preventively detained on the strength of an order of detention
purported to have been passed by the respondent No.2. Mr. Devnani submitted that the position of law is well settled. He would submit that as a
general rule, an order of detention passed by a detaining authority under the relevant “preventive detention†law cannot be set aside by a writ
Court at the pre-execution or pre-arrest stage unless the Court is satisfied that there are exceptional circumstances specified in the decision of the
Supreme Court in the case of Alka Gadia (supra).
20 Mr. Devnani submitted that in the year 2019 itself, six cases came to be registered against the appellant herein at the different police station. He
would submit that this Court may not go by the nature of the offences like simple hurt, criminal trespass, criminal breach of trust, cheating, etc, but the
effect of such a nefarious activities on the maintenance of public order should be looked into. In other words, what is sought to be argued by Mr.
Devnani is that if an individual keeps on committing various offences, then such continuance of nefarious activities may ultimately lead to breach of
maintenance of law and public order. He would argue that undoubtedly, Article 21 of the Constitution of India protects the personal liberty of an
individual, but, at the same time, such personal liberty of an individual could be curbed in accordance with law so as to protect the interest of the other
members of the society.
21 Mr. Devnani would submit that in the absence of service of detention order, if any, not only the materials containing the ground for issuing the
impugned detention order can be made available to the appellant, but, at the same time, this Court also would not get an opportunity of examining the
same, in an appropriate manner.
22 Mr. Devnani submitted that the detention order passed as alleged on vague, extraneous and irrelevant grounds can be examined by this Court only
after the service of the detention order upon the appellant with relevant papers, documents and materials. He further submitted that any contention
challenging the detention order on the ground that it was passed on a vague, extraneous and irrelevant grounds would unnecessarily involve an
investigation into the facts. The facts and reasons, for which the detention order has been issued to the appellant, as asserted by him, can only appear
from the detention order itself. Accordingly, the grounds on which the impugned order has been issued to the appellant, can be challenged and
adjudicated by the Court, after examination of the relevant materials. Indisputably, those materials can be made available only after the supply of the
impugned detention order to the concerned person.
23 In such circumstances referred to above, Mr. Devnani, the learned AGP prays that there being no merit in this appeal, the same may be dismissed.
● ANALYSIS:
24 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our
consideration is whether the learned Single Judge committed any error in passing the impugned judgement and order.
25 In the present case, the appellant, herein, thought fit to challenge the detention order at the pre-execution stage without having knowledge about the
reasons and / or grounds for issuance of the detention order, and therefore, could not have questioned the validity and / or sufficiency of the reasons
for issuance of the impugned detention order, at that stage. In the absence of service of the impugned detention order, the relevant materials,
containing the reasons and / or grounds for issuance of the said impugned order of detention, could not be disclosed to the appellant nor the learned
Single Judge had any opportunity to examine such materials, at that stage. Indisputably, at the preexecution stage, the scope for challenging the order
of detention is very limited. An order of detention can be struck down at the preexecution stage, in the rarest of rare case on certain specified limited
grounds, which have been summarized by the Hon’ble Supreme Court of India in the case of Additional Secretary to the Government of India Vs.
Smt. Alka Subhash Gadia & Anr.â€, (Supra).
26 It is not in dispute that the Supreme Court in categorical terms delineated the parameters on which order of detention at pre- execution stage can
be questioned in the case of Alka Subhash Gadia and Another (supra). In that case an order of detention was passed against the husband of the
respondent No.1 under Section 3(1) of COFEPOSA. The order, however, could not be served on him as he was absconding. Hence a declaration was
made that he fell within the category mentioned in Section 2(b) of the SAFEMA. Thereafter, a notice was issued under Section 6(1) of the SAFEMA
to show cause as to why the properties mentioned in the schedule to the said notice should not be forfeited to the Central Government for reasons
recorded in the accompaniment. A copy of the notice along with the schedule of the properties and the copy of the reasons for forfeiture of property
were also sent to the respondent No.1. The Respondent No.1, thereafter, filed a writ petition under Article 226 before the High Court challenging the
detention order as well as the show cause notice. The High Court by its impugned decision held that the writ petition was maintainable for challenging
the detention order even though the detenu was not served with the order and he had thus not surrendered to the authorities. The High Court further
directed that the detention order, the grounds of detention, and the documents relied upon for passing the detention order be furnished to the detenu
and that they should also be produced before the court. The High Court also directed the authorities to supply the said documents to the counsel for
the respondent No.1. The Assistant Director of Enforcement filed an affidavit before the High Court stating that although they were willing to produce
the order of detention and the grounds of detention for the perusal of the Court, yet they cannot furnish them to the respondent No.1, unless, as
required by the Act, the detenu first submits to the impugned order. The High Court held that the officers were guilty of contempt of court and
directed the matter to be listed to take appropriate action for contempt. It is at that stage that the special leave petitions, giving rise to the appeals,
were filed before the Supreme Court.
27 Keeping in view the fact that the appeals involved questions of great public interest and importance, the matter was ultimately heard by a three
Judges Bench, which allowed the appeals and set aside the order of the High Court. One of the grounds specifically taken by the respondent in that
case was that since judicial review was a part of basic structure of the Constitution, the power of the High Court under Article 226 of the Constitution
could not be circumscribed in any way by any law, including detention law. Therefore, the detention order could be challenged at any stage. It was
argued that the artificial distinction between pre-decisional stage and post-decisional challenge is inconsistent with and alien to the wide powers
conferred under Articles 226 and 32 of the Constitution. The Court did not accept these submissions in the broader sense in which they were argued.
The perusal of the judgment would bring the following principles laid down therein:
1) Despite the constitutional protection of Articles 14, 19 and 21, it is not mandatory that a detenu must be informed of the grounds of his detention
prior to being detained under an order of detention (para 29). The Court rejected the argument that it would deprive the detenu of a right of judicial
review of the order of detention (para 30).
2) The detenu does not even have the right to the order of detention or the grounds thereof before the order of detention is executed even to verify
whether it can be challenged at its pre- execution stage on the limited grounds available (para 32).
3) Though the courts have the power to interfere with the detention orders 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 (para 32).
4) Such exceptional cases are where the court is prima facie satisfied:
(i) that the impugned order is not passed under the Act under which it is purported to have been passed.
(ii) that it is sought to be executed against a wrong person, (iii)that it is passed for a wrong purpose
(iv) that it is passed on vague, extraneous and irrelevant grounds or
(v) that the authority which passed it had no authority to do so (para 30).
28 Following rationale is provided by the Apex Court in conferring the jurisdiction at pre-detention stage:
As regards his last contention, viz., that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is
made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of
the Constitution, we find that this argument is also not well- merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities
discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Article 22
thereof nor the Act in question place any restriction on the powers of the High Court and this Court to review judicially the order of detention. The
powers under Articles 226 and 32 are wide, and are untrammeled by any external restrictions, and can reach any executive order resulting in civil on
criminal consequences.
29 At the same time limitation in the exercise of powers at the pre- execution stage are explained in the following words:-
However, the Courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the
administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to
the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws It is in pursuance of
this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the Courts insist that the aggrieved person first allow
the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court
to invoke their discretionary, extraordinary, and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be
used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in
detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri Jain's
present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self- restraints and norms and exercise
their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibbal for the appellants, as
far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is
executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited
period. Thirdly, and this is more important, it is not correct to say that the courts Lave no power to entertain grievances against any detention order
prior to its execution.
30 At that stage the Court spelled out the circumstances in which interference would be called for:-
The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and
the grounds on which the courts have interfered with them at the pre- execution stage are necessarily very limited in scope and number, viz., where
the courts are prima facie satisfied
(i) that the impugned order is not passed under the Act under which it is purported to have been passed,
(ii) that it is sought to be executed against a wrong person,
(iii) that it is passed for a wrong purpose,
(iv) that it is passed on vague, extraneous and irrelevant grounds or
(v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary power of judicial review to
interfere with the detention orders prior to their execution on any other grounds does not amount to the abandonment of the said power or to their
denial to the proposed detenu, but prevents their abuse and the perversion of the law in question.
31 It is clear that the Court was also of the opinion that in some genuine and exceptional cases, power can be exercised by the Courts to interfere with
the detention order even at the pre-execution stage. However, the detenu cannot claim such exercise of power as a matter of “right†and it is
purely a discretion of the Court, which has to be exercised judicially on well settled principles. This is so stated in the following words:
32...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 eases 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 emphasises 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 to not 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.
32 There is no quarrel about the aforesaid dicta laid down by the Supreme Court in Alka Subhash Gadia and Others (supra). However, the parties
differ in their perceptions on two aspects, viz.:
a) Whether the five grounds mentioned in Alka Subhash Gadia and Others (supra) are exhaustive and not illustrative.
b) What would be the impact and scope of these grounds, particularly, ground 3 and 4.
33 We are of the opinion that the learned Single Judge committed no error, not to speak of any error of law, in rejecting the writ-application by
applying the settled principles of law, as laid down by the Supreme Court, in “Smt. Alka Subhash Gadia†(Supra).
34 In “Naresh Kumar Goyal Vs. Union of India and others†(Supra), the Supreme Court examined the question, as to whether the High Court
was justified in law, in not exercising its discretion under Article 226 of the Constitution to quash the order of detention, at the pre-arrest stage. While
answering the said question, the Apex Court, made the following observations in Para8;
“8. Learned counsel for the appellant submitted that once it is shown that the State has taken no steps to execute an order of detention and the
explanation furnished by the State is unsatisfactory, it must be held that the order of detention was not issued for the purpose for which it could be
issued under the Act, and necessarily implied that the real purpose was something else, not authorized by law. In such a case it made no difference
whether the appellant moved the High Court at the pre-arrest stage or after his arrest pursuant to the order of detention. He emphasized that
expeditious steps must be taken by the State both in the matter of passing the order of detention and in executing the same. Both are lacking in the
instant case. The order of detention was passed on September 4, 2002 while the complicity of the appellant is alleged to have been discovered on
August 29, 2001 on the basis of the statement of the driver of the vehicle. In the matter of implementation of the order as well, there was considerable
apathy and lethargy, since the order was not even executed till the date the writ petition was filed on June 25, 2003.
XXX XXX XXX
Mr. B.B. Singh, learned counsel appearing on behalf of the State of Bihar, submitted before us that the question involved in the instant appeal is
not whether the order of detention should be struck down on the ground that the State of Bihar has not taken necessary steps to implement the order
of detention, but whether at the pre-arrest stage the High Court should have exercised its jurisdiction under Article 226 of the Constitution of India to
quash the order of detention on such grounds. He submitted that the decisions of this Court have taken the view that exercise of discretion under
Article 226 of the Constitution of India can be justified only in appropriate cases and the scope for interference is very limited. Normally the Court
would not interfere with the order of detention at a prearrest stage under Article 226 of the Constitution of India. He submitted that there are only 5
exceptions to this rule which would justify interference by the Court at the pre-execution stage with the order of detention. Those five situations have
been enumerated 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;
As regards his last contention, viz., that to deny a right to the proposed detenue to challenge the order of detention and the grounds on which it is
made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of
the Constitution, we find that this argument is also not well merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities
discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Article 22
thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The
powers under Articles 226 and 32 are wide, and are untrammeled by any external restrictions, and can reach any executive order resulting in civil or
criminal consequences. However, the courts have over the years evolved certain self- restraints for exercising these powers. They have done so in
the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self- imposed restraints
are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It
is in pursuance of this self- evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved
person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High
Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its
very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant
authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts.
To accept Shri Jain’s present contention would mean that the courts should disregard all these time-honoured and well tested judicial self-
restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by
Shri Sibal for the appellants,as far as detention orders are concerned if in every case a detenue is permitted to challenge and seek the stay of the
operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders
are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain
grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been
pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the preexecution stage are
necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act
under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose,
(iv) that it is passed on vague, extraneous and irrelevant grounds or (v)that the authority which passed it had no authority to do so. The refusal by the
courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not
amount to the abandonment of the said power or to their denial to the proposed detenue, but prevents their abuse and the perversion of the law in
question"".
In Union of India and others vs. Parasmal Rampuria : (1998) SCC 402, when the order of detention passed under the Act was sought to be
challenged at the pre-arrest stage, this Court called upon the respondent first to surrender pursuant to the detention order and then to have all his
grounds examined on merit.
In Sayed Taher Bawamiya Vs. Joint Secretary to the Government of India and Others : (2000) 8 SCC 630, an argument was advanced before this
Court that the exceptions enumerated in Alka Subhash Gadia (supra) were not exhaustive. The submission was repelled and this Court observed :-
As we see it, the present case does not fall under any of the aforesaid five exceptions for the court to interfere. It was contended that these
exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash Gadia case shows that it is only in these five types of
instances that the court may exercise its discretionary jurisdiction under Article 226 or Article 32 at the pre-execution stage"".
35 The appellant had sought to contend that the order, which was passed, was vague, extraneous and on irrelevant grounds, but, there is no materials
for making such an averment for the simple reason that the order of detention and the grounds on which the said order has been passed has not been
placed on record, inasmuch as the order has not, yet, been executed, it is not open for the appellant to contend that the non-existent order was passed
on vague, extraneous and on irrelevant grounds.
36 The appellant does not have a copy of the same, and therefore, we are not impressed by the submissions of Mr. Mangukiya that the learned Single
judge ought to have called for the relevant files and should have undertaken the exercise to satisfy itself, as to whether the order of detention was
sustainable, having regard to the grounds on which the same was passed. As held by the Full Bench of this High Court in the case of Vijay Singh @
Gatti Pruthvisingh Rathod vs State of Gujarat decided on 3rd December 2014, if the order of detention is challenged at the pre-execution stage under
Article 226 of the Constitution of India, the High Court by way of self imposed restriction may examine as to whether the case is covered by the
criteria laid down by the Apex Court in the case of Alka Gadia (supra) and Dipak Bajaj (supra) and thereafter may call for the relevant record from
the detaining authority, but, such would depend upon sound exercise of judicial discretion of the High Court under Article 226 of the Constitution and it
cannot be said that in all cases, it would be obligatory for the High Court to satisfy itself as to whether the detention order, if any, is passed in
consonance with the scheme of the enactment under which the detention order is passed.
37 The Full Bench, while answering the reference held as under:
(1) As both the Division Benches of this Court in the case of Manchharam Samaram Meena vs. State of Gujarat (supra) and in the case of Chirag @
Vijay Bhikhubhai Chitrabhuj vs. State of Gujarat (supra) are not on disagreement for the maintainability of the petition for challenging the order of
detention under Article 226 of the Constitution at the pre- execution stage, no further view deserves to be expressed.
(2) Further, if the order of detention is challenged at pre-execution stage under Article 226 of the Constitution, the High Court by way of self- imposed
restriction may examine as to whether the case is covered by the criteria laid down by the Apex Court in the case of Addl. Secy. To the Govt. of
India v. Alka Subhash Gadia (Smt.)(supra) and Deepak Bajaj Vs. State of Maharashtra & Another, reported in (2008) 16 SCC 14 (supra) and
thereafter may call for the relevant record from the detaining authority, but such would depend upon sound exercise of judicial discretion of the High
Court under Article 226 of the Constitution and it cannot be said that in all cases, it would be obligatory for the High Court to satisfy itself as to
whether the detention order is passed in consonance with the scheme of the enactment under which the detention order is passed or whether the
detention order suffers from the vice of illegality or not, save and except the criteria as laid down by the Apex Court in the case of Addl. Secy. To the
Govt. of India v. Alka Subhash Gadia (Smt.)(supra) and Deepak Bajaj Vs. State of Maharashtra & Another, reported in (2008) 16 SCC 14 (supra).
(3) The High Court while exercising the power under Article 226 of the Constitution of India in a petition for challenging the order of detention at the
pre-execution stage may bear in mind the observations made by the Apex Court in the case of State of Maharashtra @ Ors. Vs. Bhaurao Punjabrao
Gawande (supra) at paragraph 63 relevant of which reads as under:
“63....As a general rule, an order of detention passed by a Detaining Authority under the relevant 'preventive detention’ law cannot be set
aside by a Writ Court at the pre-execution or pre-arrest stage unless the Court is satisfied that there are exceptional circumstances specified in Alka
Subhash Gadia. The Court must be conscious and mindful of the fact that this is a ’suspicious jurisdiction’ I.e. jurisdiction based on suspicion
and an action is taken ’with a view to preventing’ a person from acting in any manner prejudicial to certain activities enumerated in the
relevant detention law. Interference by a Court of Lawat that stage must be an exception rather than a rule and such an exercise can be undertaken
by a Writ Court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamu if he does not surrender and is
not served with an order of detention and the grounds in support of such order.â€
38 We are of the view that the case does not appear to be falling in the categories, where pre-execution challenge to the Detention Order ought to be
permissible. The Supreme Court in “Naresh Kumar Goyal†(Supra) (a three judge Bench decision), after a comprehensive review of the case law
and noticing the principles laid down in Alka Subhash Gadia’s case (Supra), also referred to “Sayed Taher Bawamiya V. Joint Secretary to the
Government of India and othersâ€, reported in 2000(8) SCC 630 : (a three judge Bench decision), wherein it was held that the Court in Alka
Gadia’s case (Supra) was also concerned with the matter, where the detention order had not been served, but, the High Court had entertained the
petition under Article 226 of the Constitution of India. The Court held that the equitable jurisdiction under Article 226 and Article 32, which is
discretionary in nature, should not be exercised in a case where the proposed detenu successfully evades the service of the order. If, in every case the
detenu is permitted to challenge and seek the stay of the operation of the order before its execution, the very purpose of the order and the law under
which it is made, will be frustrated, since the order are in operation for a limited period. The Supreme Court, however, noted that the Courts have
necessary power in appropriate cases to interfere with the detention order at the pre-execution stage, but, the scope of interference is very limited. It
was held that the Courts would interfere at the pre-execution stage with detention orders, only after they were satisfied of the existence of the five
situations enumerated earlier. In the instant case, it is the petitioner’s own contention that he has not allowed the detention order to be served on
him.
39 We shall, now, deal with the decision of the Supreme Court in the case of “Deepak Bajaj†(Supra), which has been heavily relied upon by the
learned Counsel appearing for the appellant. In the said case, the challenge was to the order of detention passed against the petitioner under Section
3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. At the very outset, an objection was raised by the
learned Counsel for the respondent â€" State of Maharashtra that the petition could not be entertained because the petition was filed at a pre-
execution stage i.e. before the petitioner had surrendered or was arrested. The decision of “Alka Subhash Gadiaâ€(Supra) and the other decisions
of the Apex Court were relied in support of the preliminary objection. In the said case, the Supreme Court on a perusal of the grounds of detention,
which were annexed to the petition, noticed that the basic allegations against the petitioner were that he had imported 29 consignments of goods, duty
free, which were meant to be used as a raw material for manufacturing of goods, which ought to have been exported, but, instead the same were sold
in the local market. It was also alleged that the petitioner had obtained duty free replenishment (DFR) Certificate and had misused the same.
40 The Supreme Court, after going through the necessary materials, which were brought on record, thought fit to allow the petition, solely on the
ground that the relevant material was not placed before the detaining authority, when it passed the order of detention. On that ground alone, the order
of detention was set aside. While setting aside the order of detention, the Bench made the following observations:
“6. We have carefully perused the above observations in Smt. Alka Subhash Gadia’s case (supra) and we are of the opinion that the five
grounds mentioned therein on which the Court can set aside the detention order at the pre execution stage are only illustrative not exhaustive.
XXX XXX XXX
If a person against whom a prevention detention order has been passed can show to the Court that the said detention order is clearly illegal why
should he be compelled to go to jail? To tell such a person that although such a detention order is illegal he must yet go to jail though he will be
released later is a meaningless and futile exercise.
XXX XXX XXX
If a person is sent to jail then even if he is subsequently released, his reputation may be irreparably tarnished. As observed by this Court in State of
Maharashtra & Ors. vs. Public Concern for Governance Trust & Ors. 2007 (3) SCC 587 t,he reputation of a person is a facet of his right to life under
Article 21 of the Constitution (vide paragraphs 39 and 40 of the said decision).
XXX XXX XXX
If a person against whom a preventive detention order has been passed comes to Court at the pre execution stage and satisfies the Court that the
detention order is clearly illegal, there is no reason why the Court should stay its hands and compel the petitioner to go to jail even though he is bound
to be released subsequently (since the detention order was illegal). As already mentioned above, the liberty of a person is a precious fundamental right
under Article 21 of the Constitution and should not be likely transgressed. Hence in our opinion Smt. Alka Subhash Gadia’s case (supra) cannot be
construed to mean that the five grounds mentioned therein for quashing the detention order at the pre-execution stage are exhaustive.â€
41 In our opinion, no absolute proposition of law could be said to have been laid down by the Supreme Court in “Deepak Bajaj†(Supra) so as to
assert that the order of detention could be challenged at a pre- execution stage, on any grounds, other than the five grounds mentioned in “Alka
Subhash Gadia†(Supra). We have noticed that in the said case, the grounds of detention were very much before the Court for its perusal. It is not
clear from the decision of “Deepak Bajaj†(Supra), as to how the entire grounds of detention were on the record of the Court. It is only after
going through the grounds of detention and the other materials that the Court took the view that the order of detention deserved to be set aside, as
most relevant material was not placed before the detaining authority and if such material would have been placed before the detaining authority, then,
perhaps the subjective satisfaction of the detaining authority would have been otherwise.
42 Yet, again, this issue was examined by the Supreme Court in “State of Maharashtra & Ors. Vs. Bhaurao Punjabrao Gawande†(Supra). In the
said case, in view of the prejudicial activities of the Bhaurao in black marketing of essential commodities (kerosene), the Commissioner of Police, in
exercise of powers conferred upon him under sub-Section (1) read with clause(b) of sub-Section(2) of Section 3 of the Prevention of Black Marketing
and Maintenance of Supplies of Essential Commodities Act, 1980, had directed that Bhaurao be detained. The grounds of detention were sought to be
served upon Bhaurao on the same day, however, Bhaurao, somehow came to know about the order of detention, which was passed against him and
absconded himself. He, therefore, could not be detained, nor served with the order and the grounds of detention in support of the order of detention.
The detenue, Bhaurao, without submitting to the order of detention and surrendering, filed a writ-petition being Special Civil Application No. 372 of
2006 in the High Court of Bombay( Nagpur Bench), for issuance of appropriate writ, direction or order to quash and set aside the order of detention
dated 27th July, 2006, being illegal, unwarranted and vitiated by mala fide. The High Court of Bombay (Nagpur Bench), partly allowed the petition
filed by the Bhaurao and set aside the order of detention passed by the Commissioner of Police, Nagpur City. The High Court held that the detenue
was not entitled to know the grounds, on which the order of detention had been passed, unless he surrendered. The Nagpur Bench, however,
proceeded to state that it perused the grounds of detention with a view to satisfy itself about the legality and the order of detention. The Bench also
noted that the authorities made the record available to the Court and the Court had carefully examined the same. The bench concluded that the
petition of Bhaurao could be entertained at preexecution stage. The said order passed by the Nagpur Bench was challenged before the Apex Court by
the State of Maharashtra.
43 The Apex Court took the view that the case was not one, falling within the category of exceptional case and the High Court had committed an
error of law in setting aside the order passed by the Nagpur Bench and left it open to the authorities to execute the order of detention. The Apex
Court also clarified that it was equally open to the detenu to challenge the legality thereof, on all available grounds.
44 In Bhaurao (Supra), the Apex Court took notice of the decision of a coordinate Bench inâ €œSubhash Muljimal Gandhi Vs. L. Himinglianaâ€,
(1994) 6 SCC 14. In “Subhash Muljimal Gandhi†(Supra) an order of detention was challenged by the detenue at the pre-execution stage and it
was contended by the detenue that the contingency noted in “Alka Subhash Gadia†(Supra) were illustrative and not exhaustive. Quoting the
decision of “Subhash Muljimal Gandhi†(Supra), the Apex Court made the following observations in Para- 56 and 57;
“56. In this connection, it may be profitable if we refer to a decision of this Court in Subhash Muljimal Gandhi v. L. Himingliana & Anr., (1994) 6
SCC 14. There, an order of detention was challenged by the detenu at pre- execution stage. It was contended by the detenu that the contingencies
noted in Alka Subhash Gadia were illustrative and not exhaustive. It was submitted that there might well be other contingencies where such order
could be questioned at pre-execution stage. In that case also, it was alleged that the detenu was harassed, humiliated and beaten by authorities and the
case called for grant of relief before execution of order of detention.
Negativing the contention and referring to Alka Subhash Gadia and N.K. Bapna v. Union of India, (1992) 3 SCC 512, the Court said;
“The above principles laid down in Alka Subhash Gadia have been quoted with approval by another three-Judge Bench inN .K. Bapna v. Union of
India ((1992) 3 SCC 512. Bound as we are by the above judgments, we must hold that the other contingencies, if any, must be of the same species as
of the five contingencies referred to therein. Coming now to Mr. Jethmalani’s submission, that the detention order was passed ’for a wrong
purpose’, namely, to harass and humiliate the appellant by concocting a false case of smuggling, based primarily on a confession obtained from
him after subjecting to him to assault, illegal detention and extortion we find that the detaining authority has denied the allegations of assault and
extortion. Needless to say these are disputed questions of fact, which we cannot entertain much less delve into or decide upon. In any case, the said
fact, even if true cannot vitiate the order of detention"". (emphasis supplied)â€
45 It will also be profitable for us to quote the observations made by the Apex Court in Para-63 of the said decision;
“63. From the foregoing discussion, in our judgment, the law appears to be fairly well settled and it is this. As a general rule, an order of detention
passed by a Detaining Authority under the relevant ’preventive detention’ law cannot be set aside by a Writ Court at the pre-execution or pre-
arrest stage unless the Court is satisfied that there are exceptional circumstances specified in Alka Subhash Gadia. The Court must be conscious and
mindful of the fact that this is a ’suspicious jurisdiction’ i.e. jurisdiction based on suspicion and an action is taken ’with a view to
preventing’ a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a Court
of Law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a Writ Court with extreme care, caution and
circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the
grounds in support of such order.â€
46 Thus, in our opinion, the decision of the Supreme Court in “Deepak Bajajâ€(Supra) would not save the situation for the appellant. Even
otherwise, the appellant has relied upon the Clauses (3) and (4) as laid down in “Alka Subhash Gadia†(Supra) i.e. the order is passed for a wrong
purpose and the same is on vague, extraneous and irrelevant grounds. We have already discussed in the earlier part of our judgment as to why this
submission is without any merit.
47 As held by the Supreme Court in “Subhash Muljimal Gandhi†(Supra), the other contingencies, if any, must be of the same species as of the
five contingencies referred to by the Supreme Court in “Alka Subhash Gadia†(Supra). This is suggestive of the fact that even if there be any
other ground available to the detenue i.e. other than the contingencies laid down in “Alka Subhash Gadia†(Supra), the said contingencies must be
of the same species.
48 Again in the case of Sayed Taher Bawamiya Vs. Jt. Secy to the Govt.of India [(2000) 8 SCC 630], the Supreme Court clarified that the exceptions
carved out by Alka Gadia's case were only exhaustive and not illustrative in the following manner:
As we see it, the present case does not fall under any of the aforesaid five exceptions for the court to interfere. It was contended that these
exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash Gadia case shows that it is only in these five types of
instances that the court may exercise its discretionary jurisdiction under Article 226 or Article 32 at the pre-execution stage. The petitioner had sought
to contend that the order which was passed was vague, extraneous and on irrelevant grounds but there is no material for making such an averment for
the simple reason that the order of detention and the grounds on which the said order is passed has not been placed on record inasmuch as the order
has not yet been executed. The petitioner does not have a copy of the same and therefore it is not open to the petitioner to contend that the non-
existent order was passed on vague, extraneous or on irrelevant grounds.
49 To the same effect are the judgments of the Supreme Court in the cases of Union of India Vs. Muneesh Suneja [(2001) 3 SCC 92 ]and Naresh
Kumar Goyal Vs. Union of India [(2005) 8 SCC 27 6reiterating this legal position. Even after Deepak Bajaj (supra), the Supreme Court inU nion of
India (UOI) and Ors. v. Atam Parkash and Anr. [(2009) 1 SCC 585 ]allowed the appeal of the UOI against the judgment of Punjab & Haryana High
Court following Alka Gadia's case was explained held that five grounds mentioned therein are exhaustive and not illustrative.
50 Alka Gadia (supra) has been explained and clarified by the Supreme Court itself in a number of cases. It is not only three-Judges Bench of Alka
Gadia (supra), but also the interpretation/clarification of the said judgment given by the Supreme Court in subsequent cases that would be binding on
the High Court. As against the specific pronouncement that five grounds in the case of that Alka Gadia (supra) are exhaustive, observations to the
contrary in Deepak Bajaj (supra) by two-Judges Bench have been made without taking note of the aforesaid judgment of the larger Bench. The
reason given in Deepak Bajaj (supra) in support of the view that the five grounds are illustrative is Article 21 of the Constitution. Significantly this very
basis was specifically rejected by the Supreme Court in Alka Gadia (supra). The Supreme Court also held that the following remedy was available to
take care of such a situation:
...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 of his petition.
Alternatively, as stated earlier, the Court can and does hear such petition expeditiously to give the necessary relief to the detenu.
51 In these circumstances, bound as we are on the principles of stare decisis to follow the dicta laid down by the larger Bench, we hold that the
detention order at pre-execution stage can be challenged only on the five grounds mentioned in Alka Gadia (supra) or other contingencies of the same
species.
52 For the foregoing reasons, we do not find any merit in this appeal and the same deserves to be dismissed.
53 The appeal is, accordingly, dismissed. However, there shall be no order as to costs.
54 Before parting, we may clarify that we have otherwise not gone into the merits of the order of detention and if appellant surrenders and allows the
order of detention to be executed, then, it shall be open for the appellant to challenge the same by filing an appropriate writ- application, on all available
grounds in law.
55 In view of the disposal of the main matter, the connected civil applications also stand disposed of.