Gujarat High Court
Akash Bharatbhai Parmar vs State Of Gujarat on 27 October, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/12751/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12751 of 2020
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AKASH BHARATBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR SAGAR H GOHEL(11222) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR ROHAN SHAH, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 27/10/2020
ORAL ORDER
1. Heard learned advocate Mr. Sagar H. Gohel for the petitioner and learned Assistant Government Pleader Mr. Rohan Shah for the respondent - State through video conference.
2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :-
"(A) Be pleased to admit this Special Civil Application.
(B) Your lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or directions quashing and setting aside the order of detention Page 1 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER prepared and sought to be served on the petitioner by respondent no.2 under the provision of section 3(2) of the Gujarat prevention of Anti-social Activities Act 1985.
11. Your lordship may be pleased issue an appropriate writ, order or direction in nature of writ and thereby be pleased to direct Respondent authority to place the proposed order of detention before this Hon'ble Court and after perusal the same be pleased to quash and set aside the order of detention passed by respondent no.1 in the interest of justice.
(D) During pendency and final disposal of this petition your lordship may be stay further operation, implementation and execution of the order of detention prepared and sought to be served on the petitioner by respondent no.2 under the provisions of section 3(2) of Gujarat prevention of Anti-Social Activities Act, 1985.
(E) be pleased to Direct the respondents to produce the order of detention along with the grounds of detention before this Hon'ble Court for find perusal of the same.
(F) be pleased to grant such other and further relief's which may be deemed just and proper in the interest of justice."
Page 2 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER3. The brief facts of the case are as under :-
3.1 It is the case of the petitioner that criminal complaint being CR.I No.71/2018 was registered against the petitioner on 10.5.2018 with Anandnagar police station under sections 394, 143, 147 and 148 of the Indian Penal Code and Section 135(1) of the Gujarat Police Act.
3.2 Another criminal complaint being CR.I-
No.66 of 2018 was also registered against the petitioner on 30.4.2018 with Anand Nagar police station under sections 307,397, 323,324, 294(B), 279, 337, 427, 114 of the IPC and Section 177 and 184 of Motor Vehicle Act Section 135(1) of the Gujarat Police Act.
3.3. Yet another complaint being CR.I No.70/2019 was also registered against the petitioner on 13.7.2019 with Satellite police station under Sections 307, 324 and 114 of the Indian Penal Code and Section 25(1)(B)(A) of Arms Act and Section 135(1) of the Gujarat Police Act.
3.4 Another complaint being CR. NO.11191001200086 Page 3 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER was registered on 11.3.2020 with Anand Nagar police station under Sections 406, 420, 465 and 120(B) of the Indian Penal Code 3.5 Another complaint being C.R. No.I-
64/2019 was registered against the petitioner on 9.7.2019 with Anand Nagar police station under section 452,392, 294, 506(2) and 114 of the Indian Penal Code.
3.6 The petitioner has preferred the present petition against the proposed order of detention to be passed by the respondents authorities for breach of provisions of Gujarat Prevention of Anti-Social Activities Act, 1985.
4. Learned advocate Mr. Sagar Gohel appearing for the petitioner submitted that the offences registered against the petitioner are not that serious so as to pass any detention order and considering the nature of offence, as well as, the role of the petitioner for the alleged offences registered against him, the petitioner cannot be considered as a dangerous person under Section 3(b) of the Gujarat Prevention of Anti- Social Activities Act, 1985 (hereinafter referred to as "the PASA Act") and the petitioner has nothing to do with the breach of "public order"
Page 4 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDERas defined under Section 2(c) of the PASA Act.
5. He further submitted that the petitioner is not involved in any offence, which can be counted as public disturbance and the offences are of the years 2018 and 2019 and therefore, on the basis of such old offences against the petitioner, the petitioner cannot be termed as headstrong person so as to pass any detention order against the petitioner.
6. It was further submitted that the detaining authority cannot invoke the provisions of the PASA Act under the guise to maintain the public order and to maintain the situation of law and order. It was submitted by Mr. Gohel that even for a minor offence and in case of single offence of prohibition, the respondent no.2 is used to pass the order of detention and therefore, there is strong apprehension on the part of the petitioner that considering the previous offences registered against the petitioner in which he is not involved, the authority may pass the detention order.
7. On the other hand, learned AGP Mr. Rohan Shah, who appears on advance copy has tendered a communication from the competent authority stating that there are number of offences Page 5 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER registered against the petitioner. He also submitted that the petitioner has jumped the parole and he has not surrendered after availing the parole. Mr. Shah further submitted that the petitioner has been involved in many offences and is having antecedents; therefore, the apprehension canvassed by the learned advocate for the petitioner with regard to the passing of the detention order cannot be looked into at this juncture, as it is revealed from the communication that no detention order is passed as on today.
8. Be that as it may, the Division Bench of this Court in L.P.A. No.108 of 2020 in case of Mukeshbhai Versibhai Desai (supra) recently has considered this aspect as under:
"24. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the learned Single Judge committed any error in passing the impugned judgment and order.
25. In the present case, the appellant, herein, thought fit to challenge the detention order at the pre-execution stage without having knowledge about the reasons and / or grounds for issuance of the detention order, and therefore, could not have questioned the validity and / or sufficiency of the reasons for issuance of the impugned detention Page 6 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER order, at that stage. In the absence of service of the impugned detention order, the relevant materials, containing the reasons and / or grounds for issuance of the said impugned order of detention, could not be disclosed to the appellant nor the learned Single Judge had any opportunity to examine such materials, at that stage. Indisputably, at the pre- execution stage, the scope for challenging the order of detention is very limited. An order of detention can be struck down at the pre-execution stage, in the rarest of rare case on certain specified limited grounds, which have been summarized by the Hon'ble Supreme Court of India in the case of Additional Secretary to the Government of India Vs. Smt. Alka Subhash Gadia & Anr.", (Supra).
26. It is not in dispute that the Supreme Court in categorical terms delineated the parameters on which order of detention at preexecution stage can be questioned in the case of Alka Subhash Gadia and Another (supra). In that case an order of detention was passed against the husband of the respondent No.1 under Section 3(1) of COFEPOSA. The order, however, could not be served on him as he was absconding. Hence a declaration was made that he fell within the category mentioned in Section 2(b) of the SAFEMA. Thereafter, a notice was issued under Section 6(1) of the SAFEMA to show cause as to why the properties mentioned in the schedule to the said notice should not be forfeited to the Central Government for reasons recorded in the accompaniment. A copy of the notice along with the schedule of the properties and the copy of the reasons for forfeiture of Page 7 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER property were also sent to the respondent No.1. The Respondent No.1, thereafter, filed a writ petition under Article 226 before the High Court challenging the detention order as well as the show cause notice. The High Court by its impugned decision held that the writ petition was maintainable for challenging the detention order even though the detenu was not served with the order and he had thus not surrendered to the authorities. The High Court further directed that the detention order, the grounds of detention, and the documents relied upon for passing the detention order be furnished to the detenu and that they should also be produced before the court. The High Court also directed the authorities to supply the said documents to the counsel for the respondent No.1. The Assistant Director of Enforcement filed an affidavit before the High Court stating that although they were willing to produce the order of detention and the grounds of detention for the perusal of the Court, yet they cannot furnish them to the respondent No.1, unless, as required by the Act, the detenu first submits to the impugned order. The High Court held that the officers were guilty of contempt of court and directed the matter to be listed to take appropriate action for contempt. It is at that stage that the special leave petitions, giving rise to the appeals, were filed before the Supreme Court.
27. Keeping in view the fact that the appeals involved questions of great public interest and importance, the matter was ultimately heard by a three Judges Bench, which allowed the appeals and set aside the order of the High Page 8 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER Court. One of the grounds specifically taken by the respondent in that case was that since judicial review was a part of basic structure of the Constitution, the power of the High Court under Article 226 of the Constitution could not be circumscribed in any way by any law, including detention law. Therefore, the detention order could be challenged at any stage. It was argued that the artificial distinction between pre- decisional stage and post-decisional challenge is inconsistent with and alien to the wide powers conferred under Articles 226 and 32 of the Constitution. The Court did not accept these submissions in the broader sense in which they were argued. The perusal of the judgment would bring the following principles laid down therein:
1) Despite the constitutional protection of Articles 14, 19 and 21, it is not mandatory that a detenu must be informed of the grounds of his detention prior to being detained under an order of detention (para 29). The Court rejected the argument that it would deprive the detenu of a right of judicial review of the order of detention (para 30).
2) The detenu does not even have the right to the order of detention or the grounds thereof before the order of detention is executed even to verify whether it can be challenged at its pre-execution stage on the limited grounds available (para 32).
3) Though the courts have the power to interfere with the detention Page 9 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER orders 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 (para 32).
4) Such exceptional cases are where the court is 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 (para 30).
28. Following rationale is provided by the Apex Court in conferring the jurisdiction at pre-detention stage:
"19. 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 Page 10 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER 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 place 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 on criminal consequences."
29. At the same time limitation in the exercise of powers at the pre-execution stage are explained in the following words:
"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 Page 11 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER 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 Sibbal 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 Lave no power to entertain grievances against any detention order prior to its execution."
30. At that stage the Court spelled out the circumstances in which interference would be called for:
"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 Page 12 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER 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 power 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 to the proposed detenu, but prevents their abuse and the perversion of the law in question."
31. It is clear that the Court was also of the opinion that in some genuine and exceptional cases, power can be exercised by the Courts to interfere with the detention order even at the pre-execution stage. However, the detenu cannot claim such exercise of power as a matter of "right" and it is purely a discretion of the Court, which has to be exercised judicially on well settled principles. This is so stated in the Page 13 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER following words:
"32...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 eases is not obliged to interfere with the impugned order at that stage and may insist that the detenu 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 to not 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."
32. There is no quarrel about the aforesaid dicta laid down by the Supreme Court in Alka Subhash Gadia and Others (supra). However, the parties differ in their perceptions on two aspects, viz.:
a) Whether the five grounds mentioned Page 14 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER in Alka Subhash Gadia and Others (supra) are exhaustive and not illustrative.
b) What would be the impact and scope of these grounds, particularly, ground 3 and 4.
33. We are of the opinion that the learned Single Judge committed no error, not to speak of any error of law, in rejecting the writ-application by applying the settled principles of law, as laid down by the Supreme Court, in "Smt. Alka Subhash Gadia" (Supra).
34. In "Naresh Kumar Goyal Vs. Union of India and others" (Supra), the Supreme Court examined the question, as to whether the High Court was justified in law, in not exercising its discretion under Article 226 of the Constitution to quash the order of detention, at the prearrest stage. While answering the said question, the Apex Court, made the following observations in Para8;
"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 prearrest stage or after his arrest pursuant to the order of detention. He emphasized that Page 15 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER 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.
XXX XXX XXX
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 prearrest 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 prearrest stage Page 16 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER 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 preexecution 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 : 1992 Supp (1) SCC 496;
"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 Page 17 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER 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 Page 18 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER 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".
12. In Union of India and others vs. Parasmal Rampuria : (1998) SCC 402, when the order of detention passed Page 19 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER under the Act was sought to be challenged at the prearrest 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.
13. In Sayed Taher Bawamiya Vs. Joint Secretary to the Government of India and Others : (2000) 8 SCC 630, 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 preexecution stage".
35. The appellant had sought to contend that the order, which was passed, was vague, extraneous and on irrelevant grounds, but, there is no materials for making such an averment for the simple reason that the order of detention and the grounds on which the said order has been passed has not been placed on record, inasmuch as the order has not, yet, been executed, it is not open for the appellant to contend that the nonexistent order was passed on vague, extraneous and on irrelevant grounds.
Page 20 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER36. The appellant does not have a copy of the same, and therefore, we are not impressed by the submissions of Mr. Mangukiya that the learned Single judge ought to have called for the relevant files and should have undertaken the exercise to satisfy itself, as to whether the order of detention was sustainable, having regard to the grounds on which the same was passed. As held by the Full Bench of this High Court in the case of Vijay Singh @ Gatti Pruthvisingh Rathod vs State of Gujarat decided on 3rd December 2014, if the order of detention is challenged at the pre-execution stage under Article 226 of the Constitution of India, the High Court by way of self imposed restriction may examine as to whether the case is covered by the criteria laid down by the Apex Court in the case of Alka Gadia (supra) and Dipak Bajaj (supra) and thereafter may call for the relevant record from the detaining authority, but, such would depend upon sound exercise of judicial discretion of the High Court under Article 226 of the Constitution and it cannot be said that in all cases, it would be obligatory for the High Court to satisfy itself as to whether the detention order, if any, is passed in consonance with the scheme of the enactment under which the detention order is passed.
37. The Full Bench, while answering the reference held as under:
(1) As both the Division Benches of this Court in the case of Manchharam Samaram Meena vs. State of Gujarat (supra) and in the case of Chirag @ Vijay Bhikhubhai Chitrabhuj vs. State of Gujarat Page 21 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER (supra) are not on disagreement for the maintainability of the petition for challenging the order of detention under Article 226 of the Constitution at the preexecution stage, no further view deserves to be expressed.
(2) Further, if the order of
detention is challenged at
preexecution stage under Article 226 of the Constitution, the High Court by way of selfimposed restriction may examine as to whether the case is covered by the criteria laid down by the Apex Court in the case of Addl. Secy. To the Govt. of India v. Alka Subhash Gadia (Smt.)(supra) and Deepak Bajaj Vs. State of Maharashtra & Another, reported in (2008) 16 SCC 14 (supra) and thereafter may call for the relevant record from the detaining authority, but such would depend upon sound exercise of judicial discretion of the High Court under Article 226 of the Constitution and it cannot be said that in all cases, it would be obligatory for the High Court to satisfy itself as to whether the detention order is passed in consonance with the scheme of the enactment under which the detention order is passed or whether the detention order suffers from the vice of illegality or not, save and except the criteria as laid down by the Apex Court in the case of Addl.
Secy. To the Govt. of India v. Alka Subhash Gadia (Smt.)(supra) and Deepak Bajaj Vs. State of Maharashtra & Another, reported in (2008) 16 SCC 14 (supra).
Page 22 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER(3) The High Court while exercising the power under Article 226 of the Constitution of India in a petition for challenging the order of detention at the preexecution stage may bear in mind the observations made by the Apex Court in the case of State of Maharashtra @ Ors. Vs. Bhaurao Punjabrao Gawande (supra) at paragraph 63 relevant of which reads as under:
"63....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 preexecution or prearrest 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 Lawat 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 mandamu if he does not surrender and is not served Page 23 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER with an order of detention and the grounds in support of such order."
38. We are of the view that the case does not appear to be falling in the categories, where pre-execution challenge to the Detention Order ought to be permissible. The Supreme Court in "Naresh Kumar Goyal" (Supra) (a three judge Bench decision), after a comprehensive review of the case law and noticing the principles laid down in Alka Subhash Gadia's case (Supra), also referred to "Sayed Taher Bawamiya V. Joint Secretary to the Government of India and others", reported in 2000(8) SCC 630 : (a three judge Bench decision), wherein it was held that the Court in Alka Gadia's case (Supra) was also concerned with the matter, where the detention order had not been served, but, the High Court had entertained the petition under Article 226 of the Constitution of India. The Court held that the equitable jurisdiction under Article 226 and Article 32, which is discretionary in nature, should not be exercised in a case where the proposed detenu successfully evades the service of the order. If, in every case the detenu is permitted to challenge and seek the stay of the operation of the order before its execution, the very purpose of the order and the law under which it is made, will be frustrated, since the order are in operation for a limited period. The Supreme Court, however, noted that the Courts have necessary power in appropriate cases to interfere with the detention order at the pre-execution stage, but, the scope of interference is very limited. It was held that the Courts would interfere at Page 24 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER the pre-execution stage with detention orders, only after they were satisfied of the existence of the five situations enumerated earlier. In the instant case, it is the petitioner's own contention that he has not allowed the detention order to be served on him.
39. We shall, now, deal with the decision of the Supreme Court in the case of "Deepak Bajaj" (Supra), which has been heavily relied upon by the learned Counsel appearing for the appellant. In the said case, the challenge was to the order of detention passed against the petitioner under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. At the very outset, an objection was raised by the learned Counsel for the respondent - State of Maharashtra that the petition could not be entertained because the petition was filed at a pre-execution stage i.e. before the petitioner had surrendered or was arrested. The decision of "Alka Subhash Gadia"(Supra) and the other decisions of the Apex Court were relied in support of the preliminary objection. In the said case, the Supreme Court on a perusal of the grounds of detention, which were annexed to the petition, noticed that the basic allegations against the petitioner were that he had imported 29 consignments of goods, duty free, which were meant to be used as a raw material for manufacturing of goods, which ought to have been exported, but, instead the same were sold in the local market. It was also alleged that the petitioner had obtained duty free replenishment (DFR) Certificate and had misused the same.
Page 25 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER40. The Supreme Court, after going through the necessary materials, which were brought on record, thought fit to allow the petition, solely on the ground that the relevant material was not placed before the detaining authority, when it passed the order of detention. On that ground alone, the order of detention was set aside. While setting aside the order of detention, the Bench made the following observations:
"6. 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.
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9. 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.
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12. 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 & Ors. vs. Public Concern for Governance Trust & Ors. 2007 (3) SCC 587, 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).Page 26 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER
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15. 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."
41. In our opinion, no absolute proposition of law could be said to have been laid down by the Supreme Court in "Deepak Bajaj" (Supra) so as to assert that the order of detention could be challenged at a preexecution stage, on any grounds, other than the five grounds mentioned in "Alka Subhash Gadia"
(Supra). We have noticed that in the said case, the grounds of detention were very much before the Court for its perusal. It is not clear from the decision of "Deepak Bajaj" (Supra), as to how the entire grounds of detention were on the record of the Court. It is only after going through the grounds of detention and the other materials that the Court took the view that the order of detention deserved to be set aside, as most relevant material was not placed Page 27 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER before the detaining authority and if such material would have been placed before the detaining authority, then, perhaps the subjective satisfaction of the detaining authority would have been otherwise.
42. Yet, again, this issue was examined by the Supreme Court in "State of Maharashtra & Ors. Vs. Bhaurao Punjabrao Gawande" (Supra). In the said case, in view of the prejudicial activities of the Bhaurao in black marketing of essential commodities (kerosene), the Commissioner of Police, in exercise of powers conferred upon him under sub- Section (1) read with clause(b) of sub- Section(2) of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, had directed that Bhaurao be detained. The grounds of detention were sought to be served upon Bhaurao on the same day, however, Bhaurao, somehow came to know about the order of detention, which was passed against him and absconded himself. He, therefore, could not be detained, nor served with the order and the grounds of detention in support of the order of detention. The detenue, Bhaurao, without submitting to the order of detention and surrendering, filed a writ-petition being Special Civil Application No. 372 of 2006 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 dated 27th July, 2006, being illegal, unwarranted and vitiated by mala fide. The High Court of Bombay (Nagpur Bench), partly allowed the petition filed by the Bhaurao and set aside the order of detention passed by Page 28 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER the Commissioner of Police, Nagpur City. The High Court held that the detenue was not entitled to know the grounds, on which the order of detention had been passed, unless he surrendered. The Nagpur Bench, however, proceeded to state that it perused the grounds of detention with a view to satisfy itself about the legality and the order of detention. The Bench also noted that the authorities made the record available to the Court and the Court had carefully examined the same. The bench concluded that the petition of Bhaurao could be entertained at pre-execution stage. The said order passed by the Nagpur Bench was challenged before the Apex Court by the State of Maharashtra.
43. The Apex Court took the view that the case was not one, falling within the category of exceptional case and the High Court had committed an error of law in setting aside the order passed by the Nagpur Bench and left it open to the authorities to execute the order of detention. The Apex Court also clarified that it was equally open to the detenu to challenge the legality thereof, on all available grounds.
44. In Bhaurao (Supra), the Apex Court took notice of the decision of a coordinate Bench in "Subhash Muljimal Gandhi Vs. L. Himingliana", (1994) 6 SCC 14. In "Subhash Muljimal Gandhi"
(Supra) an order of detention was challenged by the detenue at the preexecution stage and it was contended by the detenue that the contingency noted in "Alka Subhash Gadia" (Supra) were illustrative and not exhaustive.
Quoting the decision of "Subhash Muljimal Gandhi" (Supra), the Apex Court Page 29 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER made the following observations in Para- 56 and 57;
"56. In this connection, it may be profitable if we refer to a decision of this Court in Subhash Muljimal Gandhi v. L. Himingliana & Anr., (1994) 6 SCC 14. There, an order of detention was challenged by the detenu at preexecution 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 preexecution 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.
57. Negativing the contention and referring to Alka Subhash Gadia and N.K. Bapna v. Union of India, (1992) 3 SCC 512, the Court said;
"The above principles laid down in Alka Subhash Gadia have been quoted with approval by another threeJudge Bench in N.K. Bapna v. Union of India ((1992) 3 SCC
512. 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, Page 30 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER 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". (emphasis supplied)"
45. It will also be profitable for us to quote the observations made by the Apex Court in Para63 of the said decision;
"63. 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 preexecution or prearrest 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 Page 31 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER 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."
46. Thus, in our opinion, the decision of the Supreme Court in "Deepak Bajaj"(Supra) would not save the situation for the appellant. Even otherwise, the appellant has relied upon the Clauses (3) and (4) as laid down in "Alka Subhash Gadia" (Supra) i.e. the order is passed for a wrong purpose and the same is on vague, extraneous and irrelevant grounds. We have already discussed in the earlier part of our judgment as to why this submission is without any merit.
47. As held by the Supreme Court in "Subhash Muljimal Gandhi" (Supra), the other contingencies, if any, must be of the same species as of the five contingencies referred to by the Supreme Court in "Alka Subhash Gadia" (Supra). This is suggestive of the fact that even if there be any other ground available to the detenue i.e. other than the contingencies laid down in "Alka Subhash Gadia" (Supra), the said contingencies must be of the same species.
48. Again in the case of Sayed Taher Bawamiya Vs. Jt. Secy to the Govt.of India [(2000) 8 SCC 630], the Supreme Court clarified that the exceptions Page 32 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER carved out by Alka Gadia's case were only exhaustive and not illustrative in the following manner:
"7. 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. 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 nonexistent order was passed on vague, extraneous or on irrelevant grounds."
49. To the same effect are the judgments of the Supreme Court in the cases of Union of India Vs. Muneesh Suneja [(2001) 3 SCC 92] and Naresh Kumar Goyal Vs. Union of India [(2005) 8 SCC 276 reiterating this legal position. Even after Deepak Bajaj (supra), the Supreme Court in Union of India (UOI) and Ors. v. Atam Parkash and Anr. [(2009) 1 SCC 585] allowed the appeal of the UOI Page 33 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER against the judgment of Punjab & Haryana High Court following Alka Gadia's case was explained held that five grounds mentioned therein are exhaustive and not illustrative.
50. Alka Gadia (supra) has been explained and clarified by the Supreme Court itself in a number of cases. It is not only threeJudges Bench of Alka Gadia (supra), but also the interpretation/clarification of the said judgment given by the Supreme Court in subsequent cases that would be binding on the High Court. As against the specific pronouncement that five grounds in the case of that Alka Gadia (supra) are exhaustive, observations to the contrary in Deepak Bajaj (supra) by twoJudges Bench have been made without taking note of the aforesaid judgment of the larger Bench. The reason given in Deepak Bajaj (supra) in support of the view that the five grounds are illustrative is Article 21 of the Constitution. Significantly this very basis was specifically rejected by the Supreme Court in Alka Gadia (supra). The Supreme Court also held that the following remedy was available to take care of such a situation:
"...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."Page 34 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER
51. In these circumstances, bound as we are on the principles of stare decisis to follow the dicta laid down by the larger Bench, we hold that the detention order at preexecution stage can be challenged only on the five grounds mentioned in Alka Gadia (supra) or other contingencies of the same species."
9. Considering the above dictum of law and considering fact that the petitioner is involved in various offences as narrated here-in-above, it is not possible to interfere at this stage as to preempt any subjective satisfaction to be applied by the detaining authority under Section 2(c) read with Section 3(b) of the PASA Act. It is only the subjective satisfaction of the detaining authority, who has to exercise such power and no writ can be entertained preempting such subjective satisfaction to be exercised by the detaining authority as none of the exceptions as stated in the decision of Supreme Court in the case of Additional Secretary to the Government of India v. Alka Subhash Gadia reported in 1992 Supp. (1) SCC 496 are applicable to the facts of the present case.
10. It is also pertinent to note that as stated by the learned AGP Mr.Shah that the petitioner has jumped the parole and therefore the petitioner is also not entitled to any relief on Page 35 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021 C/SCA/12751/2020 ORDER the ground of equity also.
11. In such circumstances, the petition being devoid of any merit, the same is dismissed with the cost of Rs.500/- (Rupees Five Hundred only) to be deposited before the Gujarat State Legal Services Authority within the period of 30 days from today.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 36 of 36 Downloaded on : Tue Mar 02 22:05:06 IST 2021