Gujarat High Court
Lakhajivala Mohmad Rizvan Gulamnabi ... vs State Of Gujarat on 9 June, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/7249/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7249 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7260 of 2020
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RAMJU RAFIKBHAI DAIREYA THROUGH UNCLE GAFFARBHAI
ABDULBHAI GHANCHI(DAIREYA)
Versus
STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR KM ANTANI, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 09/06/2020
ORAL ORDER
1.Special Civil Application No. 7260/2020 is filed by Lakhajivala Mohmad Rizvan Gulamnabi and Special Civil Application No. 7249/2020 is filed by Ramju Rafikbhai Daireya at pre- detention stage. Since, the apprehension raised in both the petitions are same, the prayers made in Special Civil Application No. 7260/2020 are recorded which are as under :
"(A) YOUR LORDSHIPS 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 prepared and sought to be served on the petitioner by respondent no.2 under the provisions of section 3(2) of the Page 1 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER Gujarat Prevention of Anti-Social Activities Act, 1985;
(B) During pendency and final disposal of this petition YOUR LORDSHIPS may be pleased to 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 the Gujarat Prevention of Anti-Social Activities Act, 1985;
(C) Pass any such other and/or further orders that may be thought just and proper in the facts and circumstances of the present case."
2.Brief facts of the case are that an FIR being CR No.11196027200208 of 2020 is registered with Karelibaugh police station, District Vadodara for offences under sections 307, 353, 332, 323, 337, 269, 270, 294(b), 506(2), 143, 147, 148, 149 of the Indian Penal Code and offences under section 51(a) and section 54 of the Disaster Management Act and offence under section 135 of G.P. Act on 27th April, 2020 against the accused wherein it is alleged that while the police officers were on duty as per the Government notification dated, 25th March, 2020, the accused persons have thrown stones and glass bottles over the police officers. It is also alleged in the said complaint that the accused persons had also attacked the police officers with sharp weapons and also violated the conditions of notification issued by the State Government.
Page 2 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDERThe petitioners have moved this Court by way of present petitions on apprehension that the respondent authority is proposing to issue detention order against the petitioners on the basis of the said FIR.
3.Heard learned advocate Mr. P.P. Majmudar for the petitioners and learned Assistant Government Pleader Mr. K.M. Antani for the respondent-State who appears on advance copy through video conferencing.
4.Learned advocate Mr. Majmudar for the petitioners submitted that the petitioners are apprehending passing an order of preventive detention under the Gujarat Prevention of Anti-Social Activities Act,
1985 ("PASA Act for short") as similar order is passed against the co-accused in connection with FIR being CR No.11196027200208 of 2020 registered with Karelibaugh police station, District Vadodara for offences under sections 307, 353, 332, 323, 337, 269, 270, 294(b), 506(2), 143, 147, 148, 149 of the Indian Penal Code and offence under section 51(a) and section 54 of the Disaster Management Act and offence under section 135 of G.P. Act. Mr. Majmudar submitted that the petitioners are involved only in a solitary offence in the FIR stated above, wherein it is alleged that the Page 3 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER petitioners along with other persons attacked the police personnels on 25th April, 2020 during the lock-down due to pandemic Covid-
19. Mr. Majmudar relied upon the following grounds stated in the memo of SCA No. 7260/2020 to demonstrate the apprehension of order of detention that may be passed against the petitioners :
"(A) That there is no other material lo indicate that the alleged activity of the petitioner is affecting or likely to affect adversely maintenance of public order and hence, the order of detention (proposed) is illegal and bad in law.
(B) That the petitioner does not fall within the definition of "Dangerous person" the order of detention sought to be served on the petitioner is illegal and bad in law.
(C) That the petitioner is not connected with any anti-social activity which would warrant the detaining authority to issue detention order against the petitioner under PASA.
(D) That the alleged activity of the petitioner is not likely to affect the maintenance of public order and hence, the order of detention (proposed) is illegal and bad in law.
(E)That the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue as a dangerous person within the meaning of Section 2(b)of the Act.
(F)That unless there is any cogent material to make out a case that the person concerned has become a threat and a menace to society and that the whole social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a dangerous person within the meaning of Section 2[bl of the Act.Page 4 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER
(G)That the potentiality of the incident stated in the F.I.R. cannot be said to be so grave to disturb the tempo or normal life of community or disturb peace and tranquility or create a sense of insecurity in the society (H)That there are no sufficient grounds to issue detention order against the petitioner. (I)That the grounds mentioned In the case of Mice Subhash Ghadla are existing in the present case and hence, the present petition may be entertained at pre-execution stage.
(J)That in the case of Jakuba Vaghela vs. State of Gujarat, this Hon'ble Court has entertained petition at pre-execution stage.
(K) That the order sought to be served upon the petitioner is for wrong purpose and on extraneous and irrelevant ground.
(L)That the allegations leveled in the aforesaid F.I.R. is absolutely false and baseless and the petitioner has not committed the alleged offences.
(M)That the F.I.R. is false and concocted and the petitioner is made a victim in the aforesaid alleged offences.
(N)That the subjective satisfaction arrived at by the detaining authority is vitiated on account of non-application of mind.
(O)That the alleged activity of the petitioner cannot be said to be in any manner prejudicial to the public order.
(P)That the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law inasmuch as the offences alleged in the aforesaid FIR cannot have any bearing on the public order since the laws of the land are adequate enough to take care of the situation and that the allegations as have been levelled against the petitioner cannot be said to be Page 5 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER germane for the purpose of detaining the petitioner under PASA.
(Q)That the present petitioner apprehension that the respondent authority may be passed detention order on the basis of the only aforesaid FIR.
(R)That there is no live link between the proposed order and the F.I.R. registered against the petitioner.
(S)That there is no nexus and link for the alleged activity with the dist urbance of public order.
(T)That the petitioner is absolutely and innocent has not committed the alleged activity.
(U)That there is no material before the detaining a authority to reach to the satisfaction that the petitioner is a dangerous person.
(V)That there are no adequate grounds for passing the order of detention against the petitioner.
(W)That due to the impugned action on the part of the respondent authorities, the fundamental rights of the petitioner under Articles 14 and 21 of the Constitution of India is violated.
(X)Even otherwise the impugned action is arbitrary, unjustified and deserves to be quashed and set aside.
(Y)It is submitted that the said illegal detention order violates Article 21 and 22 of the Constitution of India and is, therefore, required to be quashed and set aside by this Hon'able Court."
5.According to Mr. Majmudar in view of above grounds, there is a strong apprehension that the petitioners may be detained under the Page 6 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER PASA and accordingly, he submitted that the order of detention which may be passed is required to be quashed and set aside at the pre-execution stage.
6.On the other hand, learned Assistant Government Pleader Mr. K.M. Antani for the respondent-State submitted that looking to the grounds narrated in the memo of the petitions, no case is made out by the petitioners to invoke the extraordinary jurisdiction of this Court and therefore, this Court may not entertain these petitions. He relied upon the decision of the Division Bench of this Court in case of Piyush @ Lakhan Manojbhai Bhavsar v. The Police Commissioner rendered in LPA No.1281/2018 vide order dated 8th October, 2018.
7.Having heard the learned advocates for the respective parties and having gone through the materials on record, it is required to be noted that these petitions are filed under Article 226 of the Constitution of India at pre-detention stage wherein the petitioners have expressed an apprehension of detention on the ground that PASA order may be passed against the petitioners as has been passed in case of co-accused person.
8.The petitioners have not been served with the Page 7 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER order of detention and therefore, they cannot ordinarily invoke the jurisdiction of the High Court under Article 226 of the Constitution of India. It cannot be inferred on bear words of the petitioners that because of the registration of the solitary FIR, they are likely to be detained under PASA. The petitioners have not been able to show any ground except detention order in case of co- accused to permit this Court to exercise its discretionary jurisdiction of a very limited scope in its nature to interfere at pre- execution stage.
9.At this stage, it would be relevant to refer to the decisions of this Court as well as the Hon'ble Supreme Court on the said issue :
(i) Decision of this Court in case of Bhawanlal @ Bhagwan Marwadi S/o. Suvaji @ Suvalal Kalal rendered in Special Civil
Application No. 1914/2013 vide order dated 10th December, 2013, wherein it has been held as under :
"5 On this factual premises, the learned AGP appearing for the State submits that present petition at pre-execution stage is not tenable and moreover, the present petition does not fall on any of the grounds as stated in case of AdditiONAl SecretAry to the Government of IndiA V. AlkA SubhASh GAdiA reported in 1992 Supp (1) SCC 496.
6. The first contention of learned advocate for appearing for the petitioner is that the order of Page 8 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER detention under the PASA Act could not have been passed for the solitary offence being registered and that the grounds on which order of detention was passed were extraneous and irrelevant and therefore in light of decision of Single Judge by this Court in cases of SALAm Abdul HAnifshA (SupRA) And MAVJibhAi ViRAbhAi SAgAthiA (SupRA), the present petition may be accepted and allowed.
7. Considering the nature of prayers, which are reproduced hereinabove, it is crystal clear that the petitioner challenges the detention order at the preexecution stage without placing on record the reasons and / or grounds for issuance of the detention order and therefore petitioner cannot question the validity or sufficiency 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 preexecution 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 by way of present petition that such detention order which is yet to be executed suffers from malafide and violative under Articles 14 and 21 of the Constitution of India.
8. 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 preexecution 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 preexecution 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 Page 9 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER 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.
9. 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:-
"32. 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 Page 10 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER 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.
10. On proper scrutiny of the decision rendered by the Hon'ble Apex Court in Subhash Popatlal Dave's Page 11 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER case (Supra), it becomes crystal clear that pre- detention matters can be entertained for any other exceptions or grounds in addition to exceptions carved out in case of AlkA SubhASh GAdiA's cASe (SupRA) but at the same time, it is finally stands concluded that the Court cannot enter into scrutiny of the order of detention which is yet not served upon the detenue. So the recourse leaves with the detenue is to surrender pursuant to the detention order and then to all his grievances examined on merits after he has opportunity to study the grounds of defence and to make his representation against such grounds as required by Article 22(5) of the Constitution of India.
11 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 preexecution 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.
12 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 V. ChAyA GhoshAl, reported in AIR 2005 SC 428, 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 Page 12 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER Are to punish A person for An offence committed by him. They Are not pArAllel proceedings. The object of the l AW 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 l AW. 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 l Ay 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 primordi Al 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 th At 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 p Art of the offender"
13 It is also relevant and fruitful to bear in mind the principles reiterated and reaffirmed by the Hon'ble Apex Court in case of Naresh Kumar Goyal v. Union of India reported in 2005 Cr. L. J., 4539, 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 Page 13 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER 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 preArrest 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 m Atter 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 inst Ant 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 under Article 226 of the Constitution of IndiA. He submitted Page 14 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER 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 cA n reACh Any executive 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 selfevolved judiciAl policy And in conformity with the selfimposed internAl restrictions thAt the courts insist th At 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 sp Aringly And in Page 15 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER circumstAnces where no other efficACious remedy is AVAilAble. We hAVe while discussing the relev Ant Authorities eArlier deAlt in detAil with the circumstAnces under which these extr AordinAry 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 timehonoured 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 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 import Ant, 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 preexecution 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:
(1998) 8 SCC 402, when the order of detention pASSed under the Act wAS sought to be chAllenged At Page 16 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER 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.PArAgrAph No. 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 c ASe 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"
14. Now coming to the other contention raised by the learned advocate for the petitioner in view of decisions relied upon SALAm Abdul HAnifshA (SupRA)And MAVJibhAi ViRAbhAiSAgAthiA (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 solitary offence 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 nutshell, 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 Page 17 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER 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 nonavailable 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.
15. In light of pleadings on record, the present case does not appear to be falling in the category as enumerated in AlkA SubhASh GAdiA's cASe (SupRA) or Subhash Popatlal Dave's case (Supra), where pre- execution challenge to the detention order deserves consideration. The Hon'ble Apex Court in the case of NAresh KumAr GoyAl (SupRA), after a comprehensive review of the case law on the subject and after noticing the principle laid down in AlkA SubhASh GAdiA's cASe (SupRA), it is held that jurisdiction under Article 226 and Article 32, which is discretionary in nature, should not be exercised in a case where the proposed detenue evades the service of order. If in every case, the detenue is permitted to challenge and seek the stay of 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 remains in operation for a limited period. No doubt, Hon'ble Apex Court in the cases referred hereinabove found that Courts have powers in appropriate cases to interfere with the detention order at the pre- execution stage but such power is to be exercised in Page 18 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER rarest of rare case or in exceptional cases and thus scope of interference is very very limited. In an instant case, the State has categorically stated in affidavit inreply that the petitioner is avoiding service of detention order inspite best efforts were put by the concerned Police to serve upon the petitioner.
16. 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).
17. Bearing in mind such legal proposition, it cannot be inferred on bear words of the petitioner that because of the registration of solitary F.I.R. 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 herein above. In the result, the petition fails and the same is rejected."
(ii) Decision of Hon'ble Supreme Court in case of Subhash Popatlal Dave v. Union of India and another reported in (2014) 1 Supreme Court Cases 280, wherein it is held as under :
"6. There is absolutely no difficulty in accepting the unequivocal position that the purpose of passing the order of preventive detention is not punitive but merely preventive which clearly means that if Page 19 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER the authorities are in possession of sufficient materials indicating that the proposed detenue had been indulging in economic offences violating the provisions and jumping the riders imposed by the COFEPOSA Act or other Acts of similar nature, then whether such order can be allowed to be set aside merely due to long lapse of time accepting the plea that there is no live link between the order sought to be quashed and the intention of the authorities to detain the detenue by virtue of such detention order. This Court in a series of decisions, some of which have been referred to hereinafter have consistently dealt with this question and have been pleased to hold that merely because the execution of the detention order has taken long years before it could be executed, the proposed detenue cannot be allowed to take advantage of the passage of time during which the detention order remain pending and thereafter take the plea that the order of detention is fit to be quashed due to its pendency on which the authorities had no control specially when the order of detention is allowed to be challenged before the appropriate court even at the pre-execution stage on any ground that may be available to him except of course the materials which has weighed with the authorities to pass the order of detention as it is obvious that justifiability of the material cannot be gone into at the pre-execution stage since the order of detention and the ground for such order is yet to be served on the proposed detenue as the proposed detenue was absconding or evading the execution of the order on him for one reason or the other.
7. It would be worthwhile to refer to some of the authorities relied upon by the respondent- Union of India and the State of Maharashtra which clearly addresses the issues on the point involved herein.
8. A judgment and order of the Constitution Bench may be cited as the first and foremost authority on the issue involved which is the matter of Sunil Fulchand Shah vs. Union of India, (2000) 3 SCC 409 wherein the Constitution Bench observed that a person may try to abscond and thereafter take a stand that period for which detention was directed is over and, therefore, order of detention is infructuous. It was clearly held that the same plea even if raised deserved to be rejected as without substance. It should all the more be so when the detenu stalled the service of the order and/or detention in custody by obtaining orders of the Page 20 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER court. In fact, in Sayed Taher Bawamiya vs. Govt. of India, (2000) 8 SCC 630, the factual position shows that 16 years had elapsed yet this Court rejected the plea that the order had become stale.
9. These aspects were once again highlighted in Hare Ram Pandey vs. State of Bihar & Ors., (2004) 3 SCC 289, Union of India vs. Amrit Lal Manchanda & Anr., (2004) 3 SCC 75 and Union of India vs. Vidya Bagaria (2004) 5 SCC 577. In yet another matter of Union of India & Ors. vs. Atam Parkash & Anr. (2009) 1 SCC 585, the detention order was challenged at the pre-execution stage which remained pending for long and the High Court had allowed the writ petition filed by the respondents detenue therein and quashed the detention order restraining the appellants from enforcing the order. But, this Court overruled it and held that the judgment of the High Court was clearly unsustainable and hence was set aside. It was further held therein that the question as to whether it would be desirable to take the respondents (detenue) back to custody shall be taken by the Government within two months and appeal filed by the Union of India was allowed.
10. Similarly, in the case of Bhawarlal Ganeshmalji vs. State of Tamil Nadu And Anr. (1979) 1 SCC 465, the appellant had evaded arrest and surrendered 3 years after making of the order of detention but this Court had held that the order was still effective if detenu himself were to be blamed for delay. It is no doubt true that in this matter, the Court had further held that the purpose of detention under the COFEPOSA is not punitive but preventive and there must be a 'live and proximate link' so that if there is a long and unexplained delay between the order of detention and arrest of the detenue, the order of detention may be struck down unless the grounds indicate a fresh application of mind of the detaining authority to the new situation and the changed circumstances. But where the delay is adequately explained and is found to be the result of recalcitrant or refractory conduct of the detenu in evading the arrest, there is warrant to consider that the link is not snapped. On the contrary, it could be strengthened and that was what precisely happened in the said case.
11. In yet another case of Vinod K Chawla vs. Union of India & Ors., (2006) 7 SCC 337, this Court had occasion to consider regarding the effect of delay in execution of the detention order wherein their Page 21 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER Lordships held that detenu evaded arrest and absconded and in spite of best possible efforts made by the authorities to serve the order, the order could not be executed. Taking the circumstances into consideration under which the order of detention could not be served, it was held that in view of detenue's own act of evading arrest, delay in execution of the order did not render the detention invalid.
xxx J. Chelameswar, J(concurring with G.S. Mishra, J.) "The task of this Court to maintain a balance between liberty and authority is never done, because new conditions today upset the equilibriums of yesterday. The seesaw between freedom and power makes up most of the history of governments, which, as Bryce points out, on a long view consists of repeating a painful cycle from anarchy to tyranny and back again. The Court's day-to-day task is to reject as false, claims in the name of civil liberty which, if granted, would paralyse or impair authority to defend existence of our society, and to reject as false claims in the name of security which would undermine our freedoms and open the way to oppression....."
Justice Jackson in American Communications Association, C.I.O. Vs. Charles T. Douds.
28. In my opinion, it is a statement which every judge of Constitutional Courts vested with the authority to adjudicate the legality of any state action challenged on the ground that such action is inconsistent with civil liberties guaranteed under the Constitution must always keep in mind while exercising such authority.
29. The core question in these matters is whether this Court would be justified in exercising its jurisdiction to examine the legality of the action of the State in seeking to execute preventive detention orders (passed long ago) at the pre execution stage on the claim of each one of the petitioners herein that such execution would violate the fundamental rights of the proposed detenues.
30. The facts are elaborately described in the judgment of Hon'ble the Chief Justice of India. There is no need to repeat. Suffice to say that an order of preventive detention either under the COFEPOSA Act or the National Security Act is Page 22 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER pending unexecuted for varying periods ranging from 2 to 10 years approximately.
31. Hence, these petitions complaining that permitting the State to execute such preventive detention orders would be violative of the fundamental rights under Articles 14, 19, 21 and 22 of the Constitution guaranteed to the proposed detenus. It is fervently argued on behalf of the petitioners that in view of the inordinate delay in the execution of the impugned detention orders in each of the cases, live nexus between the purpose sought to be achieved by the orders of preventive detention and the cause for such orders of detention stood snapped.
32. As already noticed, in the judgment of Hon'ble the Chief Justice of India, the essential argument of the State in defence is that the proposed detenus (either personally or through proxy) may not be heard to advance such arguments in view of the fact that such delay as is complained of is a consequence of the fact that the proposed detenus evaded the process of law by absconding.
33. Personal liberty is the most valuable fundamental right guaranteed under the Constitution. Deprivation of such liberty is made impermissible by the Constitution except as authorised under the provisions of Articles 20, 21 and 22. Deprivation of personal liberty by incarceration as a penalty for the commission of an offence is one of the recognised modes by which State can abridge the fundamental right of personal liberty. Even in such case the authority of the state is circumscribed by the limitations contained under Articles 20 and 21 of the Constitution of India.
34. Article 22 of the Constitution recognises the authority of the State to preventively detain a person notwithstanding the fact that such a person is neither convicted for the commission of any offence nor sentenced in accordance with law. The authority of the State to resort to such preventive detention is more stringently regulated by the dictates of Article 22. The nature and scope of the authority to preventively detain a person, fell for the consideration of this Court on innumerable occasions.
35. This Court consistently held that preventive detention "does not partake in any manner of the nature of punishment" but taken "by way of precaution to prevent mischief to the community"[1].
Page 23 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDERTherefore, necessarily such an action is always based on some amount of "suspicion or anticipation". Hence, the satisfaction of the State to arrive at a conclusion that a person must be preventively detained is always subjective. Nonetheless, the legality of such subjective satisfaction is held by this Court to be amenable to the judicial scrutiny in exercise of the jurisdiction conferred under Articles 32 and 226 of the Constitution on certain limited grounds.
36. One of the grounds on which an order of preventive detention can be declared invalid is that there is no live nexus between (1) the material which formed the basis for the State to record its subjective satisfaction, and (2) the opinion of the State that it is necessary to preventively detain a person from acting in any manner prejudicial to the public interest or security of the State etc. In other words, the material relied upon by the State for preventively detaining a person is so stale that the State could not have rationally come to a conclusion that it is necessary to detain a person without a charge or trial.
37. The question before us is not whether the detention order impugned in these matters is illegal on the day of their making on any of the grounds known to law. Whether the execution of the preventive detention order (which might otherwise be valid) after long lapse of time reckoned from the date of the detention order would render the detention order itself illegal or would render the execution of the detention order illegal.
38. It is the settled position of law declared by this Court in a number of cases that absence of live nexus between material forming the basis and the satisfaction (opinion) of the State that it is necessary to preventively detain a person is definitely fatal to the preventive detention order. All those cases where Courts have quashed the orders of preventive detention on the theory of lack of 'live nexus' are cases where the detention orders were executed but not cases of non-execution of the detention orders for a long lapse of time after such orders came to be passed.
39. Whether the test of live nexus developed by this Court in the context of examining the legality of the order of preventive detention can be automatically applied to the question of the legality of the execution of the preventive Page 24 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER detention orders where there is a considerable time gap between the passing of the order of preventive detention and its execution is the real question involved in these matters.
xxx
46. Therefore, I am of the opinion that those who have evaded the process of law shall not be heard by this Court to say that their fundamental rights are in jeopardy. At least, in all those cases, where proceedings such as the one contemplated under Section 7 of the COFEPOSA Act were initiated consequent upon absconding of the proposed detenu, the challenge to the detention orders on the live nexus theory is impermissible. Permitting such an argument would amount to enabling the law breaker to take advantage of his own conduct which is contrary to law.
47. Even in those cases where action such as the one contemplated under Section 7 of the COFEPOSA Act is not initiated, the same may not be the only consideration for holding the order of preventive detention illegal. This Court in Shafiq Ahmad Vs. District Magistrate, Meerut, (1989) 4 SCC 556 held so and the principle was followed subsequently in M. Ahamedkutty Vs. Union of India & Anr., (1990) 2 SCC 1, wherein this Court opined that in such cases, the surrounding circumstances must be examined. In both Shafiq Ahmad and Ahamedkutty's cases, these questions were examined after the execution of the detention order. Permitting an absconder to raise such questions at the pre-detention stage, I am afraid would render the jurisdiction of this Court a heaven for characters of doubtful respect for law.
48. This Court in the case of Alka Subhash Gadia (supra), emphatically asserted that - "it is not correct to say that the courts have no power to entertain grievances against detention order prior to its execution" This Court also took note of the fact that such an inquiry had indeed been undertaken by the Courts in a very limited number of cases and in circumstances glaringly untenable at the pre- execution stage.
49. The question whether the five circumstances specified in Alka Subhash Gadia case (supra) are exhaustive of the grounds on which a pre-execution scrutiny of the legality of preventive detention order can be undertaken was considered by us earlier in the instant case. We held that the grounds are not exhaustive.[4] But that does not persuade me to Page 25 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER hold that such a scrutiny ought to be undertaken with reference to the cases of those who evaded the process of law."
(iii) Decision of learned Single Judge of this Court in case of Piyush @ Lakhan
Manojbhai Bhavsar v. The Police Commissioner rendered in Special Civil Application No.6693/2018 vide order dated 17th September, 2018, wherein it is held as under :
"9. Having heard the learned advocates appearing for the parties and having gone through the materials placed before the Court, it appears to this Court that the petitioner is a branded bootlegger as stated by the authority and has secured a specific place in the list of bootleggers being maintained by the Police Authority for the year 2018. Further it has been found from the statements of two young boys who also referred specifically the name of the petitioner and has on the contrary indulged these young boys in connection of such crime in an organized manner. It has further been found that some stock has been seized from the place of father of the petitioner and therefore from the bare reading of the averments contained in the complaint and this material is reflecting that the petitioner is indulging himself in such kind of organized activity in such manner and therefore since, yet the authority has not framed his mind and has not passed any order on this crucial stage of the proceeding, the Court would not like to interfere with this ongoing process against the petitioner.
10. The Court is of the view that prima facie continuity of activity is one of the relevant circumstance to be considered by the authority and when the authority is at present examining the proposal of the petitioner whether to detain or not and whether to pass an order or not, at this stage, the Court would not like to intercept.
11. The Court has also taken note of that basically the present petition is at a stage where the detention order has not been executed and it is also not clear that any order is passed so far. Resultantly, the present petition at this stage though maintainable is not entertained by this Court in considered opinion, more particularly, keeping in mind the settled position of law that petition at pre-execution stage not to be entertained in a routine manner. This Court is having an advantage of some of the observations which have been made by a decision delivered by Full Bench of this Court reported in the case of Page 26 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER Vijaysinh @ Gatti Pruthivisinh Rathod vs. State of Gujarat and Another; reported in 2015 (2) GLH 132, and the relevant observation contained in paragraph 18 since considered, the Court deems it proper to reproduce hereinafter:-
"18. Hence, the reference can be answered 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 (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 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 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).
(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 Page 27 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER 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."
12. It is settled position of law that statutory powers which are invested in the authority are allowed to be exercised by the authority without any pressure or without any interference. Hence, the petition at this stage, is not possible to be entertained in present form. The said proposition of law laid down in the case of D.N.Jeevaraj vs. Chief Secretary, Government of Karnataka reported in (2016) 2 SCC 653 reproduced hereunder:-
"41. This Court has repeatedly held that where discretion is required to be exercised by a statutory authority, it must be permitted to do so. It is not for the courts to take over the discretion available to a statutory authority and render a decision. In the present case, the High Court has virtually taken over the function of BDA by requiring it to take action against Sadananda Gowda and Jeevaraj. Clause 10 of the lease cum-sale agreement gives discretion to BDA to take action against the lessee in the event of a default in payment of rent or committing breach of the conditions of the lease cum- sale agreement or the provisions of law. This will, of course, require a notice being given to the alleged defaulter followed by a hearing and then a decision in the matter. By taking over the functions of BDA in this regard, the High Court has given a complete go-by to the procedural requirements and has mandated a particular course of action to be taken by BDA. It is quite possible that if BDA is allowed to exercise its discretion it may not necessarily direct forfeiture of the lease but that was sought to be preempted by the direction given by the High Court which, in our opinion, acted beyond its jurisdiction in this regard.
43. To this we may add that if a court is of the opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure, it must give its reasons for coming to that conclusion. The reasons given by the court for disabling the statutory authority from taking a decision can always be tested and if the reasons are found to be inadequate, the decision of the court to by-pass the statutory authority can always be set aside. If the reasons are cogent, then in an exceptional case, the court may take a decision without leaving it to the statutory authority to do so. However, we must caution that if the court were to take over the decision taking power of the statutory authority it must only be in exceptional circumstances and not as a routine. Insofar as the present case is Page 28 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER concerned, the High Court has not given any reason why it virtually took over the decision taking function of the authorities and for this reason alone the mandamus issued by the High Court deserves to be set aside, apart from the merits of the case which we have already adverted to."
13. No doubt, the petition is very much maintainable at pre execution stage but, there must be some extra- ordinary circumstance sufficient enough to exercise the discretion in favour of the petitioner and here is a case in which there is no other extra ordinary circumstance appearing on which the Court would like to exercise discretion at this stage. As a result of this the petition is not accepted.
14. Considering the aforesaid circumstance, the Court is of the opinion not to accept the petition at this stage of the proceeding. Accordingly, the same is hereby dismissed. Rule is discharged."
(iv) Decision of Division Bench of this Court dated 8th October, 2018 in Letters Patent Appeal No. 1281/2018 confirming the above order passed by the learned Single Judge in Special Civil Application No. 6693/2018, wherein it is held as under :
"4. During the course of hearing, learned counsel appearing for the appellant has fairly admitted that there is no order of detention passed under the provisions of PASA Act of 1985. If no such order of detention is passed, we fail to understand how such a petition, seeking the relief as sought for, could have been filed. 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."Page 29 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021 C/SCA/7249/2020 ORDER
10. In view of the above settled legal position, the petitions cannot be entertained though they are maintainable, more particularly, at pre-execution stage and when there is no strong apprehension shown by the petitioners except that the detention order is passed against the co-accused person. As noted above in the judgments of this Court as well as Hon'ble Supreme Court, the Court is not required to go into the grounds which may be considered by the detaining authority for the purpose of passing of the detention order at the pre-execution stage.
11. In such circumstances, in absence of extraordinary circumstances sufficient enough to exercise discretion in favour of the petitioners, though the petitions are maintainable the same are not entertained exercising discretion at this stage.
12. In the result, the petitions being devoid of any merit, same are summarily dismissed.
(BHARGAV D. KARIA, J) SINDHU NAIR/RAGHUNATH NAIR Page 30 of 30 Downloaded on : Sun Feb 21 10:29:00 IST 2021