Gujarat High Court
Jigneshbhai Ishwarbhai Patel vs State Of Gujarat on 28 September, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/16322/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16322 of 2019
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JIGNESHBHAI ISHWARBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR SUDHANSHU S PATEL(655) for the Petitioner(s) No. 1
MR ISHAN JOSHI, ASST GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3
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CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 28/09/2020
ORAL ORDER
1. In this petition, under Article 226 of the Constitution of India, the challenge is to the detention order passed against the petitioner at the pre- execution stage.
2. This court by an order dated 11.08.2020 passed in Special Civil Application No. 9008 of 2020 considered the submissions at hand in context of a petition under Article 226 of the Constitution of India at the pre-execution stage. Relying on a decision passed by this court in Special Civil Application No. 7755 of 2020 on 11.08.2020, this court in Special Civil Application No. 9008 of 2020 held as under:
"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 Page 1 of 3 Downloaded on : Mon Sep 28 22:35:42 IST 2020 C/SCA/16322/2019 ORDER has been passed.
2.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.", 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 496]; (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 Page 2 of 3 Downloaded on : Mon Sep 28 22:35:42 IST 2020 C/SCA/16322/2019 ORDER 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].
4.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.
5.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."
3. In view of the above, this court does not intend to entertain this petition at pre-execution stage. Accordingly, petition is dismissed. Rule is discharged. Interim relief if any shall stand vacated.
(BIREN VAISHNAV, J) Divya / BIMAL Page 3 of 3 Downloaded on : Mon Sep 28 22:35:42 IST 2020