Gujarat High Court
Piyush @ Lakhan Manojbhai Bhavsar vs The Police Commissioner on 17 September, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/6693/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6693 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
NO
order made thereunder ?
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PIYUSH @ LAKHAN MANOJBHAI BHAVSAR
Versus
THE POLICE COMMISSIONER
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Appearance:
MR DIPAK H SINDHI(5710) for the PETITIONER(s) No. 1
MR BHARAT VYAS, ASST.GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 2
RULE SERVED(64) for the RESPONDENT(s) No. 1,3
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 17/09/2018
ORAL JUDGMENT
1. The present petition under Article 226 of the Constitution of India Page 1 of 13 C/SCA/6693/2018 JUDGMENT is filed for the purpose of seeking following reliefs:-
"(A) Your Lordships may be pleased to kindly issue Writ of Mandamus and / or a Writ in the nature of mandamus or any other appropriate Writ, order or direction to the respondents directing them to produce relevant papers and records, order and grounds of detention which is likely to be passed against the present petitioner and after perusing the grounds of detention and the role of the proposed petitioner detenue, proposed order of detention which is passed by the respondent no. 1 and to be approved by the State Government, the respondent no. 2, may be quashed and set aside.
(B) Pending hearing, admission and final disposal of this petition, this Hon'ble Court would be pleased to protect the petitioner and direct the respondents not to detain the petitioner in pursuance to the proposed order of detention under the PASA Act which passed by the respondent no. 1 and to be approved by the respondent no. 1, in the interest of justice.
(C) Your Lordships may be further pleased to kindly stay the further proceedings and execution of the order of detention which is to be passed by the respondent no. 1 and approved by the respondent no. 2 against the present petitioner.
(D) Grant such other and further relief as it may be deemed fit in the interest of justice."
2. This petition brought at the stage of proposed order of detention to be passed consisting following circumstances:-
2.1. It is the case of the petitioner that the petitioner is petitioner permanently residing in the City of Vadodara. One complaint was lodged against the petitioner on 13.03.2018 before the Gotri Page 2 of 13 C/SCA/6693/2018 JUDGMENT Police Station, Vadodara being CR No. III- 93 of 2018 for the offences punishable under Section 65 of the Bombay Prohibition Act. Yet another complaint which has been lodged is a complaint being CR No. III-131 of 2018 for the very same kind of offence and yet another complaint which is a subject matter of present petition is a compliant being CR No. III-132 of 2018 and additionally, yet another complaint being CR No. III-133 of 2018 for the very same kind of offence under the provisions of Prohibition Act by contending that the petitioner is an innocent person and wrongly been arraigned in the prosecution. There is no recovery from the petitioner and based upon such kind of averments made on oath, the petition was brought before this Court under Article 226 of the Constitution of India at a stage where the petitioner is merely apprehending that at one point of time an order of detention will be passed against him.
2.2. The Court while accepting the submissions of oath had issued rule on 26.04.2018 and thereafter the matter was adjourned but, later on when the petitioner has pressed for interim relief upon hearing both the learned counsels appearing for the respective sides, the Court was not inclined to grant any Page 3 of 13 C/SCA/6693/2018 JUDGMENT ex-parte ad-interim relief. As a result of this by way of order dated 27.07.2018 the Court has refused to grant any ex-parte interim relief since the learned AGP was not armed with any material with respect to the case of the petitioner but, later on having received the instructions the learned AGP has submitted the Affidavit-in-Reply after serving the copy to the either side and thereafter the matter has been heard at length.
3. The learned advocate Mr. Dipak Sindhi appearing for the petitioner has vehemently contended that here is a case in which the petitioner has been wrongly arraigned in the offence of Prohibition Act. It has been alleged that though the recovery has been not from the petitioner, the petitioner has been arraigned erroneously just with a view to rope the petitioner in prosecution. It has been further contended that there is no other offence except these offences which are stated in the petition and the petitioner is a law abiding citizen and therefore the activities which are alleged are not such which disturbs the public order and thereby permitted the authority to pass an order of detention. In fact there is hardly any justification in passing the order of detention. As a result of this, a request is made to entertain the petition at a pre-execution stage.
4. Mr. Dipak Sindhi, the learned advocate has further contended that the question of fundamental rights of the petitioner is untenable in the Page 4 of 13 C/SCA/6693/2018 JUDGMENT present proceeding and therefore this is a fit case in which the extra-
ordinary jurisdiction deserves to be exercised. Even if there is no order of detention in any manner, the learned advocate has submitted that these are the four offences on the basis of which the order of detention is being apprehending by the petitioner. It has been submitted that in fact the narration of the First Information Reports of all be seen, then also no case is made out of passing an order of detention against the petitioner and therefore this is a fit case in which relief prayed for may be granted in the interest of justice. Mr. Sindhi, the learned advocate has submitted that the petition is maintainable at the pre-execution stage and therefore since the law is quite clarified by catana of decisions about maintainability of petition, the relief prayed for may be granted in the interest of justice. Mr. Sindhi, the learned advocate has submitted that this selling of liquor and trading of liquor may be accepted is not violating any public order and therefore also, the relief prayed for may be granted in the interest of justice.
5. The learned advocate Mr. Sindhi has submitted that in the case of Piyush Kantilal Mehta vs. Commissioner of Police; reported in AIR 1989 SC 491, the proposition laid down therein, this is a fit case for which protection deserves to be granted to the petitioner. In fact number of offences are made the yardstick for taking appropriate measure against Page 5 of 13 C/SCA/6693/2018 JUDGMENT the petitioner. However, in fact, it is the activity which has to be seen and not the number of offences and therefore even if there are few offences registered against the petitioner, there is hardly any reason not to protect the fundamental rights of the petitioner. Relying upon the decision delivered by the Hon'ble Apex Court in the case of Piyush Kantilal Mehta (Supra), the request is made to accept the petition at this stage of the proceeding. No other submissions have been made.
6. To meet with the stand taken by the learned advocate, Mr. Bharat Vyas, the learned AGP appearing on behalf of the authority has vehemently contended that here is a case in which there is hardly any reason to exercise the extra-ordinary jurisdiction equitable in nature in favour of the petitioner. In fact, this activity of dealing in liquor is an organized activity of the petitioner. Not only there are few offences but, there are four offences in which continuously the petitioner has been nabbed and further one fact is not disclosed is that the petitioner himself is undergone and faced PASA detention on one occasion and therefore with this background of activity, the petitioner may not be allowed to avail extra-ordinary jurisdiction of this Court which is equitable in nature. It has further been contended that no doubt number of offences is not the yardstick but, at the same time continuity of activity prescribed by law is definitely a yardstick for the purpose of allowing the authority to pass the Page 6 of 13 C/SCA/6693/2018 JUDGMENT order of detention and therefore this is not a fit case in which writ to be issued in favour of the petitioner.
7. Mr. Bharat Vyas, the learned AGP has further contended that this petitioner is a habitual offender constantly dealing with such kind of prohibition activity and on the contrary is involved his family members to undertake such action and activity. In fact suitable amount of prohibited material has been found from the place of his father and has allowed the teenager minors to trade in this kind of activity and therefore this present petitioner is indulged in serious activities which are prohibited by law. Apart from this he is also having a habit of utilizing small children in connection with this activity and therefore this case may not be viewed from any sympathetic approach. Mr. Vyas has further pointed out that yet there is no order of detention passed on the basis of which the petition is heard but, at the same time it is settled position of law that statutory authorities may be allowed to process and exercise freely the statutory powers which are vested in them and therefore in this set of circumstances it is not a stage where any intersection is to be made by the Court.
8. Mr. Vyas the learned advocate has further contended that the ultimate object of the authority is to prevent the petitioner from carrying out such activity and here is a case in which consistently, the activities Page 7 of 13 C/SCA/6693/2018 JUDGMENT are continued to be operated in the area in which the petitioner is residing. To substantiate the submissions, the learned AGP has further drawn the attention of this Court to the averments contained in which it is specifically found that this petitioner is involved in a systematic organized activity of prohibition and the detention is a proper method to deal with the present petitioner. Additionally, Mr. Vyas the learned AGP has submitted the statement of one Kishan Babulal Shah the person who caught red handed has specifically named the present petitioner that the present petitioner is dealing with the material which is being provided by the petitioner. He is aged about only 16 years. Yet another boy of a teenage is also being used by the petitioner who is aged about 15 years and 7 months . He is also specifically referring the name of the petitioner. Further it has been contended that the petitioner is a branded bootlegger in the area and on the contrary he is named specifically in the list of bootleggers which has been maintained by Gotri Police Station and as per the statement of the year 2018, the petitioner is very much figuring in such list and by drawing attention, the learned AGP has submitted that here is a case in which no linency to be shown in favour of the petitioner, since the petitioner is damaging the fabric of public order and orderly behavior pattern of the society on account of his indulgence. As a result of this the authority may be allowed to exercise the statutory powers against the petitioner. The authority at this stage cannot be assumed to be Page 8 of 13 C/SCA/6693/2018 JUDGMENT taking the law in hand and will not consider the various aspect. Hence, the petition does not entertain at this stage of the proceeding. A detailed affidavit is filed to oppose the petition and thereby the learned AGP ultimately requested to dismiss the petition.
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 Page 9 of 13 C/SCA/6693/2018 JUDGMENT 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 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.Page 10 of 13
C/SCA/6693/2018 JUDGMENT (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).
(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 Law at that stage must be an exception rather than a rule and such an exercise can be Page 11 of 13 C/SCA/6693/2018 JUDGMENT 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 pre- empted 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 Page 12 of 13 C/SCA/6693/2018 JUDGMENT 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 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.
(A.J. SHASTRI, J) Bhoomi Page 13 of 13