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Judgment
Biren Vaishnav, J
1 Heard Mr.Sudhanshu Patel, learned advocate for the petitioner and Mr.Adityasinh Jadeja, learned AGP, for the respondents.
2 This is a petition challenging the order at the pre-detention stage. The case of the petitioner is that the order of detention is likely to be passed on the
basis of a solitary offence under the Prohibition Act. Perusal of the petition would indicate that averments are made in the petition that the petition is
filed at the pre-execution stage as the order of detention suffers from non application of mind. Reading of para 5 of the petition would indicate that it is
the case of the petitioner that on 16.07.2020, an offence came to be registered with Singanpor - Dabholi Police Station, wherein, it is stated that when
the complainant and the police authority were at the police station, they had received a secret information that one white coloured Eon Car loaded with
liquor is going to come from Dhanjiram Char Rasta. The apprehension of the petitioner, therefore, is that based on the solitary offence, the respondent
No.2, proposes to pass a detention order.
3 Mr.Sudhanshu Patel, learned advocate for the petitioner, relies on the decision of the Division Bench rendered in Letters Patent Appeal No. 1644 of
2019 dated 27.12.2019. Learned advocate relies on paras 21, 26 and 41 of the decision, which read as under:
21.The detention order can be challenged by way of Habeas Corpus Petition under Article 226 of the Constitution of India, however, only on limited
grounds as have now been settled by various pronouncements of the Hon'ble Supreme Court and Full Bench of this Court. It is also well settled that
writ petition would be maintain a bleeven at the stage of pre-execution of the detention order by claiming relief of writ of mandamus restraining the
authorities from detaining or from passing a detention order. Reference may be had to :(i) Additional Secretary to the Government of India v/s Alka
Subhash Gadia & Anr. reported in1992(Supp 1) SCC 496,(ii) State Of Maharashtra & Ors. v/s Bhaurao Punjabrao Gawande reported in 2008(3)
SCC613, (iii) Deepak Bajaj v/s State of Maharashtra reported in 2008(16) SCC 14 ,and(iv) Rekha v/s State of Tamil Nadu Tr. Sec. to Govt.& Anr.
reported in 2011(5) SCC 244, (v) Subhash Popatlal Dave v/s Union of India & Anr.Reported in 2012(7) SCC 53,3(vi)Vijaysinh @ Gatti Pruthvisinh
Rathod v/s State of Gujarat & Another reported in2015(1) Gujarat Law Reporter 703(FB).
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26.From the above position of law and the scheme of the Act, what clearly emerges is that although a writ-petition under Article 226 of the
Constitution of India filed at the stage of pre-execution of detention order or under the apprehension of a detention order being passed, would be
maintainable, however, on very limited scope of judicial review. The grounds for maintaining such petition and interfering at the stage of pre-execution
of a detention order would be very limited as laid down by the Supreme Court in various judgments referred above. Further, after the detention order
is executed, writ of habeas corpus would be maintainable wherein this Court under its extraordinary power under Article 226 of the Constitution may
examine the correctness of a detention order on available grounds and if it finds that such detention order is not sustainable or the procedure
prescribed for exhausting various remedies available to the detenue, is not strictly adhered to, may allow the same and set the detenue at liberty
forthwith.
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41.It is not in every case where offence is committed under the various statutory enactments that preventive measures are to be taken. It is only in
those rare and special cases where such person involved in violation of law causes a threat to maintenance of public order that process under the
PASA starts.
4 According to Mr.Patel, learned advocate for the petitioner, the apprehension of the petitioner is also well founded as the co-accused who was
detained has been subsequently released.
5 Learned Assistant Government Pleader has drawn the attention of this Court to a judgment passed in Special Civil Application No. 7755 of 2020
dated 26.06.2020 (Coram : Hon'ble Mr.Justice G.R.Udhwani). The said decision read as under:
1.All these petitions have been filed under the Gujarat Prevention of Antisocial Activities Act (for short 'the Act') at a stage where no order of
detention has been passed.
Insofar as Special Civil Application No.7028 of 2020 is concerned, learned counsel Mr. Prajapati has invited attention of this Court to the averments
that the proposal to detain the petitioner has been made and the order has been passed by the respondent No.2. Learned Assistant Government
Pleader Ms. Megha Chitaliya under instructions of Head Constable Mr.Ghanshyamsinh, PCB, Ahmedabad, states that proposal is pending but no
order is made. Thus, the statement that the detention order is passed does not seem to be accurate.3.It is unnecessary for this Court to address these
petitions on the following decisions cited at the bar; since in view of the decision rendered incase of Piyush @ Lakahn Manojbhai Bhavsar Vs. The
Police Commissioner and others in Letters Patent Appeal No.1281 of 2018 decided on 08.10.2018 holding that:
“... 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.â€, all these petitions instituted at pre-detention order stage cannot be entertained.
(1) Subhash Popatlal Dave Vs. Union of India and Another [(2014) 1 SCC 280]
(2) Suresh @ Sukho Jagubhai Patel through Vipul Amrutbhai Vs. State of Gujarat and Others [(2011) 2 GLH 616]
(3) State of Maharshtra and Others Vs. Bhaurao Punjabrao Gawande [(2008) 3 SCC 613];
(4) Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia and Another [1992 Supp. (1) SCC 49;6]
(5)Mohmeddanis Anwarahmed Rajput Vs. State of Gujarat Patent Appeal No.1694 of 2019, decision dated 03.10.2019];
(6) Ramju Rafikbhai Daireya through uncle Gaffarbhai Abdulbhai Ganchi (Duareya) Vs. State of Gujarat [Special Civil Application No.7249 of 2020,
decision dated 09.06.2020];
(7) Vijaysinh @ Gatti Pruthvisinh Rathod Vs. State of Gujarat [Special Civil Application No.5664 of 2014 and other allied matters, decision dated
03.12.2014];
(8) Rameshbhai Jagubhai Patel Vs. State of Gujarat [Letters Patent Appeal No.1339 of 2018];
(9) Jignesh Alias Lalo Shashikantbhai Chotalal Dabheliya Vs. State of Gujarat [2019(1) GLR 457];
(10) Mehtab Aharar Sikandar Sheikh Vs. State of Gujarat [2014 Cr.L.J. 2384]; (11)Poonamben @ Tasleem D/o. Ajitsingh Rana Vs. Stateof Gujarat
[Special Civil Application No.1606 of 2019, decision dated 06.03.2020].
According to learned counsel Mr.Mujmudar since the case of Piyush (supra)was eventually withdrawn, the proposition of law cannot be said to
have been laid as above in the said decision. This Court is unable to accede to the said submission for the simple reason that the statement of law is
found in the order and was maintained even while allowing the withdrawal of the same.
The petitions are therefore dismissed with no order as to costs.
6 The question of entertaining a pre-detention petition, therefore, is completely a discretion that the court will exercise under Article 226 of the
Constitution of India. The tenor of the petitions that are filed in the Court indicate that the burden shifted on the Court to inquire into from the
respondent detaining authorities as to whether there is a case for the detaining authority to pass an order of detention, the Courts cannot be made
substitutes of detaining authorities to inquire into the mind of the detaining authority to suggests whether the detention orders are necessary to be
passed.
7 This Court in Special Civil Application No. 9554 of 2014 in a decision rendered on 03.07.2015 considered Full Bench decision of this Court in the
case of Vijaysinh @ Gatti Pruthvisinh Rathod vs.State of Gujarat & Anr., and in para 5, Hon'ble Mr.Justice A.J.Desai, eloquently concluded para 9.1
and 9.5 of the decision, which read as under:
“[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 / preexecution 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 preexecution stage on the
grounds which may be available under the law at the pre- detention / preexecution 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 preexecution stage, the detenue 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 Honble 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.
His Lordship Jayant Patel, J., in para 18, made the followingobservations :
[18]. Hence, the reference can be answered 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 preexecution stage, no further view deserves to be expressed.
(2) Further, if the order of detention is challenged at preexecution stage under Article 226 of the Constitution, the High Court by way of selfimposed
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) 16SCC 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 Article226 of the Constitution of India in a petition for challenging the order of detention at the
preexecution 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 asunder:
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 preexecution or prearrest 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 insupport of such order.â€
8 In view of this position and the decisions considered by this Court (Coram : Hon'ble Mr.Justice G.R.Udhwani) of the Supreme Court as referred to
in para three thereof, the petition is dismissed.