Gujarat High Court
Chetan Madhusudan Rana vs State Of Gujarat on 19 January, 2024
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
C/SCA/955/2024 JUDGMENT DATED: 19/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 955 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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CHETAN MADHUSUDAN RANA
Versus
STATE OF GUJARAT
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Appearance:
MR VICKY B MEHTA (5422) with MS PALAK G JADEJA(11163) for the
Petitioner
MR PRANAV DHAGAT, AGP for the Respondents
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 19/01/2024
ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. RULE. Learned AGP Mr.Pranav Dhagat waives service Page 1 of 10 Downloaded on : Fri Feb 16 20:34:54 IST 2024 NEUTRAL CITATION C/SCA/955/2024 JUDGMENT DATED: 19/01/2024 undefined of Rule on behalf of the respondents.
2. The present petition under Article 226 of the Constitution of India is filed for the following reliefs:-
"B) Your Lordships may be pleased to allow this Special Civil Application by issuing a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside at pre execution stage the order of detention passed by respondent no.2 under PASA Act, as being illegal, invalid, null and void, arbitrarily and suffering from non application of mind, without jurisdiction and competence, suffering from malafides and violative of Article 21, 22 and 226 of the Constitution of India.
C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent nos.3 & 4 to produce on record the proposal, if any, sent to the respondent no.2 for detaining the petitioner;"
2.1 The petition is filed on the basis of apprehension that the petitioner will be detained as bootlegger as defined under Section 2(b) of the Act.
3. Learned Advocate for the petitioner submitted that the petitioner is shown as accused No.3 in an FIR registered with Pandesara Police Station, Surat being CR No.11210045230797 of 2023 on 25.02.2023, where the petitioner is shown to be wanted- accused and role attributed to him is that of supplier of prohibited liquor.
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NEUTRAL CITATION C/SCA/955/2024 JUDGMENT DATED: 19/01/2024 undefined 3.1 Learned Advocate for the petitioner submitted that the apprehension has arisen on account of the fact that two of the co- accused of the very offence have been detained by detaining authority and one of them being brother of the present petitioner and therefore, apprehension is well founded. 3.2 Learned Advocate for the petitioner submitted that the petitioner has been enlarged on anticipatory bail by the Court of competent jurisdiction, still the petitioner is likely to be detained under PASA, the moment he courts arrest.
3.3 Learned Advocate for the petitioner submitted that as the petitioner is already subjected to criminal prosecution on the basis of registered offence, it cannot be a ground for detaining the petitioner on the basis of a solitary offene. 3.4 It is submitted that probable detention of the petitioner would clearly fall within the third ground mentioned in the decision of the Apex Court in case of Additional Secretary to the Government of India & Ors. Vs. Smt.Alka Subhash Gadia & Anr., reported in 1992 Supp. (1) SCC, 496, as the purpose for passing the order of detention will not be served considering the fact that the offence was registered in the month of February 2023 and till December 2023, the petitioner is not detained and therefore, on the ground of delay that has taken place, the purpose Page 3 of 10 Downloaded on : Fri Feb 16 20:34:54 IST 2024 NEUTRAL CITATION C/SCA/955/2024 JUDGMENT DATED: 19/01/2024 undefined of detention will not be served.
3.5 Learned Advocate for the petitioner relied upon decision of the Apex Court in case of Subhash Popatlal Dave Vs. Union of India, reported in 2014(1) SCC, 280, particularly relied upon para-49 of the judgment to substantiate that if there is lapse of long period before detaining the petitioner then such an order of detention will not subsist.
3.6 Reliance is also placed on the decisions of this Court in cases of Rajubhai Ranabhai Odedara Vs. State of Gujarat, reported in 2020 (3) GLR, 1644 and Haidarsha Abdulsha Pir through his son Nizamuddin Haidarsha Pir Vs. State of Gujarat, reported in 2020 AIGEL Hc, 242426.
4. As against this, learned AGP has objected to the grant of petition and has submitted a report of Police Inspector, Pandesara Police Station, Surat dated 18.01.2024 addressed to the office of the Government Pleader, indicating 7 antecedents of the petitioner of similar nature. The report also indicates that in connection with the present offence, the petitioner is yet to be arrested and it is only thereafter that the proposal for detention can be framed and forwarded.
4.1 Learned AGP has further submitted that argument of the petitioner with regard to delay after registration of the offence Page 4 of 10 Downloaded on : Fri Feb 16 20:34:54 IST 2024 NEUTRAL CITATION C/SCA/955/2024 JUDGMENT DATED: 19/01/2024 undefined cannot be accepted as that will not fall within the grounds carved out from the decision of the Apex Court in case of Smt.Alka Subhash Gadia (supra).
4.2 It is submitted that the petitioner is not complying with the rule of law and therefore, no benefit be made available to the petitioner by exercising discretion in his favour.
5. Having heard learned Advocates for the parties and having perused documents on record, it appears that the petitioner has approached this Court on the basis of apprehension, where the petitioner has been arraigned as accused in FIR registered with Pandesara Police Station, Surat being CR No.11210045230797 of 2023 on 25.02.2023. In the said FIR, the petitioner has been named as accused No.3. The role attributed in the FIR is that the petitioner is the supplier of prohibited liquor in large quantity to co-accused.
6. The petitioner's apprehension is on the basis of a fact that co-accused, viz. Sunny @ Sonu Dineshbhai Solanki, has been detained under order dated 14.12.2023. However, the order of detention, which is produced at Annexure-E and the grounds therein would indicate that the said detenue is involved in two offences registered at Pandesara Police Station and Limbayat Police Station respectively.
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7. The apprehension is also based on the order at Annexure-C, which is against one Arvind Madhusudar Rana, apparently brother of the petitioner. However, the said detenue is not co-accused of the petitioner in the present case and the grounds of detention would indicate that the said detenue has been detained under order dated 14.12.2023 for his involvement in an offence registered at Limbayat Police Station, whereas apprehension raised by the petitioner is based on his involvement as accused in offence registered at Pandesara Police Station we well as Limbayat Police Station.
8. The report submitted by learned AGP would indicate antecedents against the petitioner, which are as under:-
Sr. Name of Police Station CR No. Sections No. 1 Vasda Police Station 0148 of 2014 384, 504 and 114 of IPC 2 Gandevi Police Station 729 of 2014 65(A)(E), 66(1)(B) and 116 of the Prohibition Act 3 DCB Police Station, Surat 0051 of 2016 65(A)(E), 66(1)(B), 81, 98, 99 and 116(1) of the Prohibition Act 4 Pardi Police Station 0246 of 2017 65(E), 81 and 98 of the Prohibition Act 5 Navsara Rural Police Station 0101 of 2019 65(A)(E), 81, 98(2) and 99 of the Prohibition Act 6 DCB Police Station, Surat 11210015200047 65(A)(E), 66(1)(B), 81, 83, 98(2) and 99 of the Prohibition Act 7 Limbayat Police Station, Surat 11210025234403 65(E), 81 and 98(2) of the Prohibition Act Page 6 of 10 Downloaded on : Fri Feb 16 20:34:54 IST 2024 NEUTRAL CITATION C/SCA/955/2024 JUDGMENT DATED: 19/01/2024 undefined
9. The scope of this Court to examine the order of detention at pre-execution stage, as to whether such order would be falling within five grounds specified by the Apex Court in case of Smt.Alka Gadia (supra), would begin only when the order of detention has been passed, and the same is yet to be executed. From the facts coming out on record, it is evident that no order of detention has been passed nor there is any proposal made by the sponsoring authority in this regard.
10. If the submission of learned Advocate for the petitioner to interfere at this stage is accepted then it will be at the stage where even sponsoring authority will be precluded from preparing the proposal on merits if the grounds are available for detention under PASA. This stage for examination as to whether proposal can me made or not is not envisaged either in law nor in any of the precedents and therefore, if the Court takes upon itself to examine the facts and merits, which are still at nascent stage then the sponsoring authority will be precluded from undertaking its statutory obligation, which cannot be the objective of the legislation.
11. Learned Advocate for the petitioner relied upon decision of Division Bench of this Court in case of Rajubhai Ranabhai Odedara (supra) in support of the argument that not in Page 7 of 10 Downloaded on : Fri Feb 16 20:34:54 IST 2024 NEUTRAL CITATION C/SCA/955/2024 JUDGMENT DATED: 19/01/2024 undefined every case, where an offence is committed, under various statutory enactments, preventive measures are to be taken. The Division Bench of this Court was examining the decision of Single Judge of this Court dismissing the petition challenging the order of detention with cost of Rs.10,000/-. In para-3 of the aforesaid judgment, the stage at which exercise was undertaken, is clearly visible as the petitioner was already detained in judicial custody. He was arrested in connection with an offence and upon being released from judicial custody, was detained under the provisions of PASA and therefore, it is at the stage when the order of detention was executed that the Division Bench of this Court had examined the issue.
12. In case of Haidarsha Abdulsha Pir (supra), an LPA under Clause-15 of the Letters Patent was filed against order of the Single Judge of this Court confirming the order of detention under PASA. There also, entire issue and law laid down in the aforesaid judgment at the stage of after detention order stood executed.
13. In the present case, the fact is that there is no order of detention. Not only that, it has come on record by way of the report of the sponsoring authority that the petitioner is yet to be arrested in connection with the offence registered against him and hence, there is no proposal and therefore, this is not the stage at which the Court can interfere in any manner. Page 8 of 10 Downloaded on : Fri Feb 16 20:34:54 IST 2024
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14. The Court may refer to the decision of the Apex Court in case of Subhash Popatlal Dave (spura) relied upon by learned Advocate for the petitioner, wherein para-49 reads as under:-
"(49) In order to arrive at a decision in these matters and to answer the question as to whether an order of preventive detention can continue to subsist after a long period had lapsed from the date of passing of the order, it will, first of all, be necessary to appreciate the difference between preventive detention and the ordinary criminal law providing for detention and arrest. While the Constitution, which is the cornucopia of all laws, accepts the necessity of providing for preventive detention, it also provides certain safeguards against arbitrariness and making use of the provision as a tool against political opponents. Since the said provision deprives a citizen of some of the basic and fundamental rights guaranteed to him under the Constitution, the Courts have dealt with laws relating to preventive detention with great care and caution to ensure that the provision was not misused by the Investigating Authorities as an easy alternative to proper investigation. Normally, the life of a preventive detention order is one year. Such a period is intended to give the detenue, who is detained without any trial, an opportunity to introspect and reflect into his past deeds, and to dissuade him from indulging in the same in future. In other words, the period of detention is intended not to punish the detenue, but to make him realize the impact of his earlier indiscretions on society and to discontinue the same."
15. The aforesaid part of the judgment is rendered by Hon'ble Judge of the Full Bench of the Apex Court whereas Two Hon'ble Judges of the Full Bench have expressed their opinion with regard to examining of the order of detention challenged by the proposal detenue is as under:-
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NEUTRAL CITATION C/SCA/955/2024 JUDGMENT DATED: 19/01/2024 undefined "(98) 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."
16. It would be appropriate to examine in the facts of the present case that the petitioner is definitely evading the process of law as the offence was registered on 25.02.2023, he had filed application for anticipatory bail on 15.12.2023, which was decided on 29.12.2023. While granting anticipatory bail, certain conditions were imposed and the petitioner is in breach of certain conditions, particular condition Nos.1 and 2.
17. In view of the aforesaid no case is made out for interference. The petition deserves to be and is hereby dismissed. Rule is discharged.
(A.Y. KOGJE, J) (SAMIR J. DAVE,J) SHITOLE Page 10 of 10 Downloaded on : Fri Feb 16 20:34:54 IST 2024