Gujarat High Court
Mehtab Ahrar Sikandar Sheikh vs State Of Gujarat & 2 on 4 February, 2014
Author: K.J.Thaker
Bench: Vijay Manohar Sahai, K.J.Thaker
C/LPA/85/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 85 of 2014
In SPECIAL CIVIL APPLICATION NO. 16398 of 2013
With
CIVIL APPLICATION NO. 774 of 2014
In
LETTERS PATENT APPEAL NO. 85 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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MEHTAB AHRAR SIKANDAR SHEIKH....Appellant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MS SUBHADRA G PATEL, ADVOCATE for the Appellant
MR UTKARSH SHARMA, AGP for the respondents
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
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C/LPA/85/2014 JUDGMENT
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 04/02/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. The appellant has filed this Letters Patent Appeal under Article 15 of the Letters Patent Appeal to challenge the judgment dated 10.12.2013 passed by the learned Single Judge in Special Civil Application No.16398 of 2013, wherein the learned Single Judge has dismissed the petition filed by the appellant to quash the detention order which is yet to be passed by the detaining authority against the appellant.
2. The facts in brief giving rise to this Letters Patent Appeal are that the appellant filed writ petition in this High Court to quash the detention order which is yet to be passed by the detaining authority on the basis of solitary criminal case registered against the appellant and has sought quashment of the detention order on various grounds available to the appellant to challenge the detention order after its execution. Thus the appellant preferred the writ petition apprehending his detention in pursuance of proposed detention order to be passed by the detaining authority. The learned Single Judge by the impugned judgment has dismissed the writ petition. Hence this Letters Patent Appeal.
3. We have heard Ms.Subhadra G.Patel, learned advocate appearing for the appellant and Mr.Utkarsh Sharma, learned Assistant Government Pleader appearing for the respondents.
4. Learned advocate Ms.Subhadra G. Patel appearing for the appellant submitted that the appellant is likely to be detained as a Dangerous Person within the meaning of Section 2(c) of the Gujarat Prevention and Anti Social Activities Act, 1985, but merely Page 2 of 7 C/LPA/85/2014 JUDGMENT because of the appellant is a dangerous person, he cannot be preventively detained under the provisions of PASA Act unless as laid down in Sub-Section (4) of Section 3 of the PASA Act, the activities of the appellant as a dangerous person affect adversely or are likely to affect adversely to the maintenance of public order. She submitted that just because single case has been registered against the appellant under the Gujarat Prevention of Anti Social Activities Act, 1985, by itself, does not have any bearing on the maintenance of the public order. She submitted that one offence being registered against the appellant, the respondent No.2 is likely to pass order of detention or it is already passed against the appellant. She submitted that except the alleged offence, there is no other material to show that the alleged activities of the appellant 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. She further submitted that the action on the part of the respondents is also challenged on the ground that the subjective satisfaction arrived by the detaining authority is vitiated on account of non-application of mind as there is no nexus and link for the alleged activities with the disturbance of public order. Therefore, due to the impugned action on the part of the respondents, the fundamental right of the appellant under Articles 14 and 21 of the Constitution of India are violated. In support of her submissions, the learned advocate for the appellant has relied upon the decision rendered by the Division Bench of this Court in the case of Aartiben W/o Nandubhai Jayantibhai Sujnani V/s. Commissioner of Police and others delivered in Letters Patent Appeal No.2732 of 2010 on 28.03.2011. Since, the said decision is rendered in the post-detention matter, it is not helpful to the appellant. Therefore, Ms.Patel urged that on the basis of the Letters Patent Appeal No. 1383 of 2013 passed by this Court on 23.12.2013, the matter may be remanded as the detention order is already passed.
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5. Learned AGP has supported the impugned judgment of the learned Single Judge and prayed that the appeal may be dismissed.
6. We have gone through the detention order, the facts and circumstances of the case and submission made by the learned counsel appearing for the appellant even on merits. The grounds urged on behalf of the appellant in the memo of appeal do not persuade us to take a different view than one taken by the learned Single Judge as he has exhaustively dealt with the contentions raised before him. The learned Single Judge has observed in paragraph No.9 as under :
"9. Learned advocate 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."
7. Recently, the Hon'ble Apex Court in the case of Subhash Popatlal Dave v. Union of India reported in (2014) 1 SCC 280, has observed in paragraph Nos.14 and 15 as under:
"14.The legal position was reiterated in Dropti Devi Page 4 of 7 C/LPA/85/2014 JUDGMENT v. Union of India, wherein one of the questions which arose for consideration was whether the detenu could be allowed to take advantage of his own wrong on the plea that the maximum period of detention prescribed having expired and the detenu in the said case having failed to join investigation despite the High Court's order would justify questioning of such order. This Court held that the detenu could not take advantage of his own wrong and challenge the detention order on the plea that the purpose of execution of detention order no longer survived as maximum statutory period of detention would have lapsed by them.
15. From the ratio of the aforesaid authoritative pronouncements of the Supreme Court which also include a Constitution Bench judgment having a bearing and impact on the instant matters, the question which emerges is that if the order of detention is allowed to be challenged on any ground by not keeping it confined to the five conditions enumerated in Alka Subhash Gadia except the fact that there had been sufficient materials and justification for passing the order of detention which could not be gone into for want of its execution, then whether it is open for the proposed detenu to contend that there is no live link between the order of detention and the purpose for which it had been issued at the relevant time. In the light of ratio of the decisions referred to hereinabove and the law on preventive detention, it is essentially the sufficiency of materials relied upon for passing the order of detention which ought to weigh as to whether the order of detention was fit to be quashed and set aside and merely the length of time and liberty to challenge the same at the pre-execution stage which obviated the execution of the order of preventive detention cannot be the sole consideration for holding that the same is fit to be quashed. When a proposed detenu is allowed to challenge the order of detention at the pre-execution stage on any ground whatsoever contending that the order of detention was legally unsustainable, the Court will have an occasion to examine all grounds except sufficiency of the material relied upon by the detaining authorities in passing the order of detention which legally is the most important aspect of the matter but cannot be gone into by the Court as it has been allowed to be challenged at the pre-execution stage Page 5 of 7 C/LPA/85/2014 JUDGMENT when the grounds of detention have not even been served on him."
10. Thus it could be seen from the above position of law as expounded by the Apex Court that the detention order which had already been passed can be challenged by the proposed detenu at a pre-execution stage i.e. before it is executed upon the detenu. Herein in the present case admittedly, the detaining authority has not passed any detention order against the appellant. Here, admittedly appellant has approached this Court by filing the writ petition to quash the detention order before it is passed by the detaining authority. This is evident from the averment made in paragraph No.4, wherein it is stated that it is important to note that relying on solitary prohibition offence respondent No.2 is likely to pass the order of detention or it is already passed against the appellant. When no detention order had been passed by the detaining authority, the so-called detenu cannot file the writ petition apprehending detention order against him. The legal position is very clear just because other persons have been released, it will not give parity to the present appellant or give a second chance to go before the learned Single Judge.
11. For the foregoing reasons, we are of the opinion that the writ petition filed by the appellant before detention order is passed against him was not at all maintainable. We do not find any reason to interfere with the judgment passed by the learned Single Judge. Accordingly, this Letters Patent Appeal stands dismissed.
12. In view of the dismissal of the LPA, Civil Application also fails and is dismissed.
(V.M.SAHAI, J.)
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C/LPA/85/2014 JUDGMENT
(K.J.THAKER, J)
Ashish Tripathi
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