State of Gujarat vs Abdul Rashid Abdul Gani Bukhari

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C.L. Soni, J.—The State and its authorities have preferred this application seeking condonation of delay of 185 days occurred in preferring the Letters Patent Appeal under Clause 15 of the Letters Patent against the judgment dated 6.3.2014 rendered by the learned Single Judge in the petition preferred by the opponent-original petitioner under Article 226 of the Constitution of India.

The above-said petition was preferred by the original petitioner at pre-execution stage of the order of detention passed by the respondent No. 2 under the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 (''The Act''). The said order of detention was passed against the petitioner on the ground that the petitioner is a cruel person as per the definition of Section 2(bbb) of the Act, which reads as under:-

"2(bbb) ''cruel person'' means a person, who either by himself or as a member or leader of a gang, habitually commits or attempts to commit or abets the commission of an offense punishable under section 8 of the Bombay Animal Preservation Act, 1954."

The order of detention was passed relying on a solitary incident for which, an FIR was registered, being C.R. No. II-3150 of 2012 dated 2.11.2012 at GIDC Vatva Police Station, Ahmedabad for the offences under Sections 5, 6(C)(B)(1)(2)(3) and 8 of the Bombay Animal Preservation Act, 1954, Section 11(L) of the Animal Cruelty Act, Sections 335 and 336 of the Bombay Provincial Municipal Corporation Act and Section 119 of the G.P. Act. The FIR was stated to be under investigation, in connection with which the petitioner was on bail.

Learned Single Judge after considering the judgment in the case of Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia and Another, and in the case of Deepak Bajaj Vs. State of Maharashtra and Another, , deemed it proper to exercise powers under Article 226 of the Constitution of India to quash the order of detention at pre-execution stage. The applicant State and its authorities have taken 185 days in making challenge to such order passed by learned Single Judge.

After having gone through the judgment of learned Single Judge, we permitted learned Assistant Government Pleader Mr. Rakesh Patel to address us on merits so as to point out as to whether there is any merit in the challenge made against the judgment rendered by learned Single Judge so that application for condonation of delay could be considered, otherwise no purpose would be served to just entertain the application, to call the other side on such application and then to hear the appeal on merits.

Learned Assistant Government Pleader Mr. Patel then submitted that the detaining authority committed no error in passing the order of detention even on solitary offence as the petitioner is stated to be a cruel person considering his activities. Mr. Patel submitted that when there is no bar in passing the order of detention on the solitary offence, it was for the petitioner first to surrender pursuant to the order of detention and then to make challenge against the order of detention. Mr. Patel submitted that the case of the petitioner was not in exception so as to warrant exercise of writ jurisdiction by learned Single Judge against the order of detention at pre-execution stage. Mr. Patel, therefore, submitted that since it was not a case to exercise powers at pre-execution stage, delay deserves to be condoned and the appeal is required to be heard on merits.

We are however of the view that the present is not the case where prayer for condonation of delay is required to be entertained. There is no dispute about the fact that except a solitary case for the offences registered on 2.11.2012, there is no other material with the detaining authority to pass the order of detention. The solitary case registered against the petitioner for the offences punishable under different Acts, including under Section 8 of the Bombay Animal Preservation Act, 1954, would not be sufficient to label the petitioner as cruel person as per Section 2(bbb) of the Act.

The use of phase ''habitually'' connotes repeated or continual acts. Learned Single Judge has considered the word ''habitual'' as very relevant and we also find that unless a person is found to be habitually committing or attempting to commit or abets in commission of the offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954, he cannot be said to be Cruel Person as defined in Section 2(bbb) of the Act. Therefore such definition itself is not attracted in the facts of the case. The detaining authority, therefore, could be said to have exceeded in its authority, power and jurisdiction in making the order of detention against the petitioner and if such being the case, power under Article 226 of the Constitution of India could very well be exercised against the order of detention at pre-execution stage.

We, therefore, do not see any infirmity in exercise of the powers by learned Single Judge under Article 226 of the Constitution of India against the order of detention at pre-execution stage. When we do not find any infirmity in the order made by learned Single Judge, no purpose would be served to entertain the application for condonation of delay. Learned Single Judge has considered the judgment of the Hon''ble Supreme Court in the case of Deepak Bajaj (supra) which lays down that five grounds mentioned in Alka Subhash Gadia (supra) are just illustrative and not exhaustive and if person can satisfy the Court that the order of detention is clearly illegal, then there is no reason why the Court should stay its hands and compel him to go to jail.

There is one additional aspect of the matter that under the Act, maximum period for which any person may be detained shall be one year from the date of detention. And the purpose behind the Act is to immediately prevent anti-social and other activities of a person which may be found prejudicial to the maintenance of the Public Order. The date of order of detention is 8.11.2012. Nearly two years have passed. Though it could be said that since the petition was at pre-execution stage, such order could still be implemented, however, if the real purpose to prevent the prejudicial activity was to be achieved, the State would not have delayed the matter by 185 days. For this reason also, we are not inclined to entertain the application.

In above such view of the matter, the application for condonation of delay is rejected. Consequently, the Letters Patent Appeal and Civil Application for stay would not survive and shall stand disposed of.