Vinod @ Vijay Murlidhar Udhwani vs State of Gujarat and Another

S.H. Vora, J.—By way of present petition under Article 226 of the Constitution of India, the petitioner challenges the action on the part of the respondents and prays to direct the respondents not to detain the present petitioner in pursuance of the proposed order of detention under the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short "the PASA Act"), which is likely to be passed by the respondent No. 2 and to be approved by the respondent No. 1 at pre-execution stage. Brief facts leading to the present petition can be summarized as under:

1.1 The petitioner is residing at Vadodara since last several years. The police authority has registered FIR being I - C.R. No. 5008 of 2012 for the offence punishable under the Bombay Prohibition Act with DCB Police Station, Ahmedabad City. One of the accused shown in the said FIR is Mr. Vinod Dolatram Sindhi. In the said FIR, the police authority has shown petitioner''s name Mr. Vinod Murlidhar Udhwani as wanted accused in the said alleged offences. In the said FIR, name of the accused mentioned is Vinod Dolatram Sindhi, residing near Vaishali Talkies, Nadiad and in the second FIR registered with Prohibition C.R. No. 5024 of 2012 registered on 20.7.2012, name of the accused mentioned is "Vinod Sindhi" and the place mentioned therein from where the illicit liquor was lifted is shown to be Balasinor. Similarly, in one another FIR being Prohibition C.R. No. 5010 of 2013 registered with DCB Police Station for the offences under the Bombay Prohibition Act, the name of the wanted accused is mentioned as "Vinod Sindhi", residing at Mahudha. Thus, in nutshell, it is the case of the petitioner that his name is Vinod Murlidhar, resident of Vadodara and the petitioner is not in any way connected with Mahudha, Balasinor or Nadiad. In support of the averments so made in the petition, the petitioner has placed reliance on various documents in form of photo copies of election card, driving licence, ration card and passport. Based on this factual details, it is the case of the petitioner that under mistaken identity, the respondent authority is going to pass detention order under wrong name.

1.2 It is further case of the petitioner that all the co-accused of the aforesaid FIRs registered under the Bombay Prohibition Act were detained under PASA as per order annexed and marked as Annexure B colly to the petition. However, said orders were quashed by this Court as per various orders passed in Special Civil Applications placed on record. So, according to the petitioner''s case, since detention order passed against other co-accused persons of the aforesaid FIRs were considered by this Court on its merit, any order proposed by the competent authority detaining the petitioner under PASA Act is not tenable and permissible under law and therefore, purported exercise of power under the PASA Act by the respondent authority is initiated with a view to falsely detain the petitioner under PASA Act.

1.3 It is also the case of the petitioner that registration of FIRs by themselves cannot lead to disturbance of tempo of public life and public order. That except registration of the FIR under the bombay Prohibition Act, there is no material before the respondent No. 2, whereby it can be inferred reasonably that the petitioner is a bootlegger within the meaning of section 2(b) of the PASA act and required to be detained as the petitioner''s activities are prejudicial to the maintenance of public life and public order. During the course of arguments, it is submitted at bar that the petitioner is in jail since 29.6.2013, therefore, preventive detention of the petitioner who is already behind the bar is impermissible and thus, non-awareness of the detaining authority about the petitioner''s detention in jail would vitiate the order of detention on the ground of non application of mind. On all broad grounds, the petitioner has filed this petition under Articles 14, 19, 21 and 22 of the Constitution of India and made following prayers in para 13 of the petition.

13(A) Your Lordship be pleased to issue appropriate, writ, order or directions of this Hon''ble High Court, directing the respondents herein to produce relevant papers and records, orders, and grounds of detention which is likely to be passed or has been passed against the present petitioner and after perusing the grounds of detention and the role of the proposed petitioner detenu, proposed order of detention which is likely to be passed or has been passed by the respondent No. 2 i.e. the Police Commissioner, Ahmedabad City and to be approved by the State Government i.e. the respondent No. 1 may be quashed and set aside in the interest of justice.

13(AA) Your Lordship be pleased to issue appropriate, writ, order or directions and be pleased to quash and set aside the impugned action of the respondents seeking to detain the present petitioner for the same allegations which are made in the FIRs being Prohibition C.R. Nos. 5008 of 2012, 5024 of 2012 and 5010 of 2013 respectively registered with DCB Police Station, Ahmedabad City under the detention order passed by the respondent No. 2 i.e. the Police Commissioner, Ahmedabad City under the provisions of the PASA Act as being arbitrary, illegal and violative of Articles 14, 19(1)(g) and 21 of the Constitution of India in the interest of justice.

13(B) Your Lordship be pleased to order that pending hearing, admission and final disposal of this petition, the petitioner may be protected and be further pleased to direct the respondents not to detain the present petitioner in pursuance to the proposed order of detention under PASA Act which is likely to be passed by the respondent No. 2 and to be approved by the respondent No. 1 in the interest of justice.

In response to the Rule issued by this Court, affidavit-in-reply on behalf of the respondent No. 2 - Commissioner of Police, Ahmedabad City is filed stating that the facts stated with regard to mistaken identity is absolutely incorrect and by misrepresentation, such averments are made in the petition. It is submitted that both the names, namely Vinod Dolatram Sindhi and Vijay Murlidhar Udhwani are the names of the present petitioner appearing at eleven police stations in the State of Gujarat for the 25 FIRs registered against the petitioner under the Prohibition Act and u/s 307 of the Indian Penal Code and three offences are registered under the provisions of section 302 of the Indian Penal Code. In support of such contention, the respondent No. 2 has submitted information in tabular form in para No. 6 of the affidavit-in-reply.

It is further contended by the petitioner that in different Courts, bail applications were filed by the present petitioner stating that his name is Vinod @ Vijay Murlidhar Udhwani. Such copies of these bail applications are annexed with the affidavit-in-reply as Annexure R1. Not only that, the concerned police sought remand in different offences when the petitioner was produced before the learned Magistrate and at no point of time, the petitioner objected regarding his identity and never raised any contention regarding wrong identity/mistaken identity. Not only that as and when the petitioner was arrested, his photos were taken by different police station, in which also, the petitioner identified him as Vinod @ Vijay Murlidhar Udhwani (Sindhi).

Considering the nature of prayers, which are reproduced herein above and as per the submissions made by learned Senior Counsel Mr. Oza appearing for the petitioner, the petitioner is likely to be detained as bootlegger within the meaning of section 2(b) of the PASA Act. Upon such apprehension, the present petition is filed by the petitioner.

It is clear that the petitioner challenges the detention order at pre-execution stage without placing on record the reasons and/or grounds for issuance of detention order and therefore, the petitioner cannot question the validity or efficiency of the grounds for issuance of detention order at this stage. It becomes clear by way of present petition that the petitioner prays for issuance of writ of mandamus or any other appropriate writ, order or direction to quash and set aside the order of detention without its execution and without verification of contents of such detention order at pre-execution stage as if it is illegal, void and arbitrary. In other words, it can also be said that even without referring and testing the contents of the order of detention, it is prayed in the present petition that such detention order, which is yet to be executed, suffers from mala fide and violate under Articles 14 and 21 of the Constitution of India. Vide prayer 13(A), the petitioner has also prayed for order, direction or writ of the Court directing the respondents to produce relevant papers and records, orders and grounds of detention, which is likely to be passed or has been passed against the present petitioner for perusal of the Court.

Learned Senior Counsel Mr. Oza appearing with Mr. I.H. Pathan for the petitioner submits that the petitioner is likely to be detained as bootlegger within the meaning of section 2(b) of the PASA Act. But merely because of the petitioner is a bootlegger, he cannot be detained under the provisions of the PASA Act unless as laid down in sub section (4) of section 3 of the PASA Act, the activity of the petitioner as bootlegger affect adversely or likely to affect adversely to the maintenance of public order. Learned Senior Counsel Mr. Oza further submits that just because three cases have been registered against the petitioner under the Bombay Prohibition Act, by themselves, do not have any bearing on the maintenance of the public order. Not only that the detaining authority is likely to pass detention order of the petitioner under wrong name as stated herein above. Except the alleged three FIRs registered under the Bombay Prohibition Act, there is no other material to show that the alleged activity of the petitioner are affecting or likely to affect adversely to the maintenance of public order and hence, the proposed order of detention is illegal and bad in law. It is further submitted by Mr. Oza that action on the part of the respondent is also illegal and violative of the fundamental rights of the citizen on the ground that the subjective satisfaction arrived at by the detaining authority is vitiated on account of non-application of mind as there is no nexus or link for the alleged activities to the disturbance of public order. On the top of it, all the co-accused persons of the aforesaid three FIRs who were detained under the PASA Act are set free as per various orders passed by this Court in various Special Civil Applications preferred by the co-detenue and though the petitioner is behind the bar since June, 2013, the detaining authority is likely to pass order of detention without considering the said fact. Therefore, due to the impugned action on the part of the respondent, the fundamental rights of the petitioner under Articles 14 and 21 of the Constitution of India are violated. In support of his submission, learned Senior Counsel Mr. Oza relied upon the following decisions.

Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia and Another,

State of Maharashtra and Others Vs. Bhaurao Punjabrao Gawande,

Deepak Bajaj Vs. State of Maharashtra and Another,

Maqsood Yusuf Merchant Vs. Union of India (UOI),

Haradhan Saha Vs. The State of West Bengal and Others,

Salam Abdul Hanifshaibhai Vs. The District Magistrate rendered in Special Civil Application No. 892 of 2007 dated 2.8.2007.

Keshubhai Madiyabhai Katara Vs. Commissioner of Police of Ahmedabad City and others rendered in Special Civil Application No. 6231 of 2007 with Special Civil Application No. 6771 of 2007 dated 29.8.2007.

Sampat Singh Vs. State of Rajasthan,

Biru Mahato Vs. District Magistrate Dhanbad,

Per contra, it is submitted by learned AGP Mr. Poojari for the State that the case of the petitioner does not fall in any of the exceptions carved out in the case of Alka Subhas Gadia (supra), which is reaffirmed by the Hon''ble Apex Court in the subsequent decision of Subhash Popatlal Dave Vs. Union of India delivered in Writ Petition (Criminal) No. 137 of 2011. On these factual premises, learned AGP Mr. Poojari appearing for the State submits that the present petition at pre-execution stage is not tenable and moreover, the petition does not fall on any of the grounds as stated in the case of Alka Subhas Gadia (supra) read with case of Subhas Popatlal Dave (supra).

On careful reading of decision rendered in case of Subhash Popatlal Dave v. Union of India and Anr. delivered in Writ Petition (Criminal) No. 137 of 2011, the following principles relating to the matters challenging detention order at pre-execution stage can be summarized as under:-

(a) No petition can be entertained to quash the proposed order of detention without it being executed and served upon the detenue at pre-execution stage except in the rarest of rare case on certain specific limited grounds which have been summarized by the Hon''ble Apex Court in the case of Alka Subhash Gadia''s case (Supra), namely; (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 by 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 an order had no authority to do so.

(b) The detenues have no right to raise a contention that there is no link or nexus between the order of detention and actual detention at any later date in case the detenue evades/evaded the execution of detention order either remains absconded or protected by Court''s order.

(c) The subjective satisfaction of the detaining authority is to be considered on the date of detention order and not on the date of its scrutiny.

The Hon''ble Apex Court in Alka Subhash Gadia''s case (Supra) while laying down the scope of detention order at pre-execution stage, the Hon''ble Apex Court said that ".....this only emphasis 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." The Hon''ble Apex Court declared the ambit of the judicial review by saying "the refusal by the Courts to use their extra ordinary powers 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 of the proposed detenue, but prevents their abuse and the perversion of the law in question." Finally, the Hon''ble Apex Court in para 32, observed as under:-

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 for 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 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 of 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 detenue 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 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.

Meaning thereby, the detenue cannot claim such exercise of powers as of right because the Hon''ble Apex Court in Alka Subhash Gadia''s case (Supra) drawn the distinction between the existence of power and its proper exercise and at the end it is left to the discretion of the Court and it has to be exercised judicially on well settled principles. Furthermore, in Alka Subhash Gadia''s case (Supra) case, the Hon''ble Apex Court negatived the contention raised there to the effect that whether detention order should be served to the detenue in advance to enable him to challenge him in the Court of law before obeying the order. If such recourse is permitted then it would amount to providing an opportunity of judicial review of the detention order even before it is executed.

Learned Senior Counsel Mr. Oza appearing for the petitioner submitted that the Court may call for the detention order so as to find out whether legal and valid grounds exists to detain the petitioner under the PASA Act. Such prayer cannot be entertained by the Court because the issue regarding disclosure of order of detention before its execution is taken care of by the Hon''ble Apex Court in case of Subhash Popatlal Dave''s case (Supra), wherein, it has been made clear that the order of detention may not be called upon even under the R.T.I. Act. Therefore, the question of allowing the prayer to direct the respondent - authority to produce the order of detention on the ground that it may be scrutinized and examined by the Court at pre-execution stage does not arise. Neither the provisions of Constitution of India nor the statute under which detention order is passed obliges the State to disclose the grounds before arrest, even though the State is in possession of the grounds before the time of execution of detention order. So, there is no substance in such contention and deserves to be rejected.

At this stage, it is fruitful to refer the observations made by the Hon''ble Apex Court in Paragraph 8 of the decision rendered in case of Union of India (UOI) and Another Vs. Shrimati Chaya Ghoshal and Another, which are reproduced as under:

Before dealing with rival submissions, it would be appropriate to deal with the purpose and intent of preventive detention. Preventive detention is an anticipatory measure and does not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the concerned law. The action of Executive in detaining a person being only precautionary, normally the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner, the failure to conform to which should lead to detention. The satisfaction of the Detaining Authority, therefore, is considered to be of primary importance, with great latitude in the exercise of its discretion. The Detaining Authority may act on any material and on any information that it may have before it. Such material and information may merely afford basis for a sufficiently strong suspicion to take action, but may not satisfy the tests of legal proof on which alone a conviction for offence will be tenable. The compulsions of the primordial need to maintain order in society without which the enjoyment of all rights, including the right to personal liberty of citizens would loose all their meanings provide the justification for the laws of preventive detention. Laws that provide for preventive detention posit that an individual''s conduct prejudicial to the maintenance of public order or to the security of State or corroding financial base provides grounds for satisfaction for a reasonable prognostication of possible future manifestations of similar propensities on the part of the offender.

It is also relevant and fruitful to bear in mind the principles reiterated and re-affirmed by the Hon''ble Apex Court in case of Naresh Kumar Goyal Vs. Union of India (UOI) and Others, while examining the question as to whether the High Court was justified in law, in not exercising its discretion under Article 226 of Constitution of India to quash the order of detention, at pre-execution stage, answered by observing in Paragraph Nos. 8, 11, 12 and 13, as under:-

...Paragraph No. 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.

Paragraph No. 11

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 pre-arrest 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,

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 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 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.

Paragraph No. 12

In Union of India and Others Vs. Parasmal Rampuria, 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.

Paragraph No. 13

In Sayed Taher Bawamiya Vs. Joint Secretary to the Govt. of India and Others, 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....

Now coming to the other contention raised by the learned Senior Counsel Mr. Oza for the petitioner in view of decisions relied upon Salam Abdul Hanifsha (Supra) and Mavjibhai Virabhai Sagathia (Supra), the petitioner challenges the legality and validity of the order on the ground that is settled principle of law that person cannot be detained on the basis of offences registered against him. The order of detention is passed on the basis of what has come to be known as subjective satisfaction has to be arrived at on two points. Firstly, on the veracity of the facts imputed to the person to be detained and secondly on the prognostication of the detention authority that the person concerned is likely to indulge again in the same kind of notorious activities. At the same time, neither the possibility of launching of a criminal proceedings nor punishment of any criminal proceedings is an absolute bar to an order of preventing detention. In nut-shell, unless and until the material is there to make out a case that the person concerned is such a threat to the society so as to disturb the whole tempo of the society and that the whole social apparatus is in disturbance of public order at the instance of such person no detention order can be passed but in order to contend that the petitioner case is covered by any of the exceptions as carved out in Alka Subhash Gadia''s case (Supra) or any other grounds, there is no material for making such an averments because neither the order of detention nor the grounds/documents upon which the said detention order has been passed, has not been placed on record as order has not yet been executed. So it is not open for the petitioner to challenge the legality and validity of non-available order on the ground that it is passed on vague, extraneous and irrelevant grounds. For the sake of repetition, it is made clear that unless and until the order of detention is available and judicially scrutinized, there cannot be a decision that such order passed by the competent authority under the PASA Act is illegal and deserves to be quashed and set aside. Admittedly, the petitioner does not have copy of the detention order and therefore the petitioner cannot pray before this Court to call the relevant files and then undertake the exercise to satisfy itself as to whether order of detention is legal and valid in view of grounds upon which it is passed. Such exercise is held to be impermissible and beyond the jurisdiction of the High Court at pre-execution stage. In the cases referred herein above, the Court after examining the detention order and grounds upon which it were passed, were found to be legal and just. But, it is not so in the instant case. Therefore, said decision is not applicable to the facts of the present case.

The other contention raised by the petitioner to the effect that the competent authority is likely to pass order under mistaken identity or under wrong name is devoid of any merit. Needless to say that the petitioner is involved in all 25 offences registered at various districts, namely, Panchmahal, Vadodara, Anand, Rajkot, Navsari, Ahmedabad City, Ahmedabad Rural etc. and at such police stations, the petitioner''s photographs are obtained by the authority. In some of the cases, the petitioner was taken into police custody from the competent Court in respect to the FIRs referred in the petition and also in other FIRs, petitioner''s name is shown as shown in the cause title of the petition. At no stage, either when the police sought remand or the petitioner sought bail from the competent Court, the petitioner took objection with regard to his identity. So, the said contention raised by the petitioner as to detention order likely to be passed under wrong name is devoid of any merit and it appears that such contention has been raised to bring the case without one of the exceptions as categorized in case of Alka Subhash Gadia (supra). It is relevant to note that the petitioner has deliberately not uttered a word with regard to other 22 offences registered against the petitioner at various points of time. So, the Court is not convinced with the submissions made by learned Senior Counsel Mr. Oza that the petitioner is likely to be detained under wrong name or under mistaken identity as alleged.

In light of the affidavit-in-reply, the concerned police has clearly identified the petitioner without any mistake in view of series of offences registered against the petitioner in various districts of the State of Gujarat. The other contention raised by learned Senior Counsel Mr. Oza to the effect that there is no material to show that alleged activities of the petitioner are affecting or likely to affect adversely to the maintenance of the public order would not save the skin of the petitioner as per discussion made in the earlier part of the judgment as to why this submissions is without any merit.

Similarly, the contention alleged by the learned Senior Counsel Mr. Oza that since the petitioner is in jail, there is no reason or a cause for the detaining authority to pass preventive detention order. In support of such submission, learned Senior Counsel Mr. Oza relied upon the decision in case of Biru Mahato (supra). I have carefully and minutely examined the said decision stated at bar. Again for the reasons recorded herein above, the said decision is not helpful to the petitioner as detention order is not on record so as to infer that the detaining authority would pass detention order without considering the fact that the petitioner is already behind the bar. It also requires to be noted that the petitioner is not a convict person, but is in jail in respect of offences registered against him and in fact, the petitioner has not made any specific averment in the entire petition so as to examine the decision of Biru Mahato (supra) in detail whether it is applicable to the facts of the present case or not.

In case of Deepak Bajaj (supra), the challenge was to the order of detention passed against the petitioner u/s 3(1) of the COFEPOSA Act, 1974. In the said case, the State of Maharashtra for the respondent took an objection that the petition could not be maintained, because it was filed at pre-execution stage i.e. before the petitioner surrenders or was arrested. In the said case, the decision of Alka Subhash Gadia (supra) and other decision of the Hon''ble Apex Court were referred to and rely upon by the respondent State in support of the preliminary objection. In the said case, the Hon''ble Apex Court on perusal of the grounds of detention noticed that the petitioner had imported 29 consignments of the goods duty free, which were meant to be used as a raw material for manufacturing of the goods, which ought to have been exported, but instead the petitioner sold the same in the local market. It was also alleged by the respondent in case of Deepak Bajaj that the petitioner had obtained duty free replenishment certificate and misused the same. So, it appears that the Hon''ble Apex Court after going through the necessary materials/grounds brought on record allowed the petition on the ground that the relevant material was not placed before the detaining authority and on such ground, the order of detention was set aside. In this background of the facts, the Hon''ble Apex Court made the following observations:-

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.

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.

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 Vs. Public Concern for Governance Trust and Others, the 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).

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.

So, it does not seem that the Hon''ble Apex Court in Deepak Bajaj''s case, lay down any such proposition of law so as to assert that the order of detention could be challenged at pre-execution stage or any other grounds than the five grounds categorized in case of Alka Subhash Gadia (supra). As it can be noticed from the facts of the case of Deepak Bajaj (supra), the Hon''ble Apex Court, after examining the grounds of detention and other materials, took the view that order of detention requires to be quashed as most relevant material was not placed before the detaining authority.

In other decision cited by learned Senior Counsel Mr. Oza is the case of Bhaurao (supra), where the respondent was directed to be detained in view of prejudicial activities in black marketing of the essential commodities i.e. Kerosene in exercise of power conferred upon the Commissioner of Police under sub section (2) of section 1 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. In the said case, it appears that said Mr. Bhaurao could not be served with detention order as he absconded himself. So, the detenue Mr. Bhaurao without submitting/surrendering to the order of detention filed a writ petition 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 being illegal, unwarranted and vitiated by facts. While partly allowing the petition filed by Mr. Bhaurao, the High Court held that the detenue was not entitled to know the grounds of which the order of detention had been passed unless he surrenders. Before the Nagpur Bench, the Court examined the grounds of detention with a view to satisfy itself about legality of the order of detention and accordingly, the authorities made the record available to the Court and the Court had examined the same. Thereafter, the Bench concluded that the petition of Mr. Bhaurao could be entertained at pre-execution stage. The said decision was carried further before the Hon''ble Apex Court by the State of Maharashtra and the Hon''ble Apex Court took the view that the case was not falling within the category of exceptional cases and set aside the order passed by the Nagpur Bench. In the said case, the Hon''ble Apex Court made the following observations in para 56, 57 and 63 as under:

In this connection, it may be profitable if we refer to a decision of this Court in Subhash Muljimal Gandhi Vs. L. Himingliana and Another, 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 N.K. Bapna Vs. Union of India (UOI) and Others, the Court said;

The above principles laid down in Alka Subhash Gadia have been quoted with approval by another three-Judge Bench in N.K. Bapna Vs. Union of India (UOI) and Others, 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.

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.

In view of the facts of the present case and the decision cited at bar by the learned Senior Counsel Mr. Oza, the fate of dismissal of the petition will remain unchanged for the reasons discussed by the Court in the earlier part of the judgment as to why submissions made at bar are without any merit both on facts and on law.

The offshoot of the above discussion is such that the petitioner seeks writ of mandamus in the present case as he has not surrendered nor he has been served with the order of detention and therefore he cannot ordinarily invoke the jurisdiction of the High Court under Article 226 of the Constitution of India as petitioner fails to make out an exceptional case as categorized in Alka Subhash Gadia''s case (Supra) and Subhash Popatlal Dave''s case (Supra).

Bearing in mind such legal proposition, it cannot be inferred on bear words of the petitioner that because of the registration of F.I.Rs. under Prohibition Act, he is likely to be detained creating false grounds. To substantiate the allegations of malafide, the petitioner has also not joined any authority in his personal capacity and further it is not even clear whether there is any further material with the authority or not. In short, I find that the petitioner has not laid down any firm foundation to permit this Court to exercise its discretionary jurisdiction of a very limited scope in its nature to interfere at pre-execution stage within the parameters laid down by the Hon''ble Apex Court in the cases referred hereinabove. In the result, the petition fails and the same is rejected. It is clarified that the Court has not gone into the merits of the proposed order of detention as it is yet to be passed and if in future, the petitioner is served with such detention order and if he surrenders and allows the order of detention to be executed, then it will be open for the petitioner to challenge the same on all the grounds that may be available in accordance with law. With this, the present petition stands rejected. Rule is discharged.

Further Order

Learned advocate Mr. Pathan for the petitioner requests to continue the interim relief so as to challenge the order before higher forum. Considering the facts and circumstances of the case, interim relief as granted earlier is further extended for two weeks from today.