Gujarat High Court
Imran Anishbhai Shaikh vs State Of Gujarat on 4 November, 2020
Author: A. C. Rao
Bench: A.C. Rao
C/SCA/3629/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3629 of 2020
==========================================================
IMRAN ANISHBHAI SHAIKH
Versus
STATE OF GUJARAT
==========================================================
Appearance:
JEET Y RAJYAGURU(8039) for the Petitioner(s) No. 1
MR MEET THAKKAR AGP (1) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3
==========================================================
CORAM: HONOURABLE MR. JUSTICE A.C. RAO
Date : 04/11/2020
ORAL ORDER
By way of present petition under Article 226 of the Constitution of India, the petitioner seeks to challenge the legality and validity of the threatening action of respondent Nos.2 and 3 of passing the order of detention under the Gujarat Prevention of Antisocial Activities Act, 1985 (for short "the PASA Act") at preexecution stage.
2. It is contended by the learned advocate for the petitioner that if there is any order of detention, the same may be quashed and set aside as being illegal, invalid and arbitrary. It is submitted that there is only one FIR registered against the present petitioner and therefore, merely filing of FIR against him would not be construed and culminated into the definition of a "Bootlegger" under the PASA Act.
Page 1 of 6 Downloaded on : Thu Nov 05 01:30:12 IST 2020 C/SCA/3629/2020 ORDER3. Per contra, Mr.Meet Thakkar, learned AGP appearing for the State has opposed this petition and contended that the predetention petition is not maintainable.
4. Heard learned advocate for the petitioner and learned AGP for the respondent State.
5. The contention raised by the petitioner cannot sustain in view of the decision of the Apex Court holding that only in the exceptional cases, pre detention matters are maintainable, as decided by the Apex Court in the case of Additional Secretary to the Government of India and Others vs. Smt. Alka Subhash Gadia and Another reported in 1992 Supp. (1) SCC 496, the exceptions are as under: "(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 is 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."
5.1 The said judgment is again referred to by the Apex Court in the case of Deepak Bajaj vs. State of Maharashtra reported in 2009 (1) GLH 140, wherein the Page 2 of 6 Downloaded on : Thu Nov 05 01:30:12 IST 2020 C/SCA/3629/2020 ORDER Supreme Court has 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 preexecution 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."
6. At this juncture, it would be appropriate to refer to the judgment of Division Bench of this Court rendered in case of Rajubhai Ranabhai Odedra vs. State of Gujarat and Ors. reported in 2020 GLR 1644, wherein, in para34 it is observed as under :
"Whether or not the detaining authority was apprised of the entire criminal antecedents of the appellant is also not relevant inasmuch it is by now well settled that even a single case depending upon the gravity and nature of the offence would be sufficient to sustain a detention order."
6.1 It is further held in paragraphs 23 and 26 of the above referred judgment as under :
Page 3 of 6 Downloaded on : Thu Nov 05 01:30:12 IST 2020 C/SCA/3629/2020 ORDER"23. The leading case on the point is of Alka Subhash Gadia(supra) and the law laid down in paragraph 30 thereof is reproduced below:
"30. 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 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, order resulting in civil or criminal consequences. However, the courts have over the years evolved certain selfrestraints 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 selfimposed 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 selfimposed 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 Page 4 of 6 Downloaded on : Thu Nov 05 01:30:12 IST 2020 C/SCA/3629/2020 ORDER 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 welltested judicial selfrestraints 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 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 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 a 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 detenu, Page 5 of 6 Downloaded on : Thu Nov 05 01:30:12 IST 2020 C/SCA/3629/2020 ORDER but prevents their abuse and the perversion of the law in question."
26. From the above position of law and the scheme of the Act, what clearly emerges is that although a writpetition under Article 226 of the Constitution of India filed at the stage of preexecution 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 preexecution 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."
7. Considering the fact that only one FIR is registered against the present petitioner and the petitioner has not been able to point out any exceptional case as decided by the Apex Court and Division Bench of this Court, the case of the petitioner is not such that it can be entertained under Article 226 of the Constitution of India and no other exceptional circumstance is carved out to intervene with the principles of the detention. Hence, the present petition deserves to be dismissed and is hereby dismissed. Notice is discharged.
(A. C. RAO, J) SRILATHA//DOLLY//BEENA Page 6 of 6 Downloaded on : Thu Nov 05 01:30:12 IST 2020