Gujarat High Court
Gulamhusen Babubhai Mastan Saiyed Thru ... vs State Of Gujarat on 19 August, 2020
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/8566/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8566 of 2020
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GULAMHUSEN BABUBHAI MASTAN SAIYED THRU HIS SON NASEER
HUSEN GULAMHUSEN SAIYED
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR.MINHAJ M SHAIKH(6847) for the Petitioner(s) No. 1
MR. ROHAN N. SHAH, AGP, (99) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3
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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 19/08/2020
ORAL ORDER
1. This petition is filed under Article 226 of the Constitution of India with a prayer to issue a writ or direction to quash and set aside the order of detention prepared and sought to serve on the applicant by the respondent no.2 under the provisions of Section 3(2) of the Gujarat Prevention of Anti Social Activities Act.
2. Learned advocate for the petitioner submits that the solitary offence FIR being CR. No.III-11191018200380 of 2020 registered with Gomtipur Police Station, Ahmedabad City is the ground on which the proposed detention order is to be passed. It is submitted that the petitioner is wrongly involved in the offence as he has not carried out any activities which is against the provisions mentioned in the complaint. It is submitted that there is no material against the petitioner to connect the petitoiner in the alleged offence and there is no over act on the part of the petitioner and therefore, any action under PASA is unwarranted. Learned advocate for the petitioner submits that there are no antecedents against the petitioner and therefore the activity of the petitioner alleged cannot be Page 1 of 5 Downloaded on : Wed Feb 24 01:12:19 IST 2021 C/SCA/8566/2020 ORDER said to be affecting the maintenance of the public order.
3. Having considered the arguments advanced and the pleadings it appears that the petitioner is an accused of an offence of FIR being CR.
No.III-11191018200380 of 2020 registered with Gomtipur Police Station, Ahmedabad City for the offence punishable under Sections 143, 147, 148, 1866, 188, 308, 332, 333, 336, and 337 of the Indian Penal Code, under Section 135(1) of the Gujarat Police Act and under Section 3 of the Prevention of Damage to Public Property Act.
4. In challenge to detention order, the Court is required to examine the subjective satisfaction arrived at by the detaining authority is proper procedureally and otherwise. There is no scope to examine and appreciate the arguments of petitioner regarding sufficiency of evidence, lack of evidence etc. against an accused in the FIR. Such exercise is more so uncalled for where the petitioner is unable to bring on record any order of detention. In the present case, except for the pleading in ground-I"that petitioner is having an apprehension that original informant is proposing to issue detention order against the petitioner as five persons from the impugned complaint are already detained under PASA.", no other facts and circumstances are pleaded to satisfy this Court to prima-facie believe that the apprehension is justified.
5. A Division Bench of this Court in the case of Poonamben @ Tasleem D/o Ajitsingh Rana v/s. State of Gujarat in Letters Patent Appeal No.1606 of 2019 in Special Civil Application No.20814 of 2018 dated 06.03.2020, has quoted several judgments on this line and thereafter held in paragraph Nos.36, 37 and 38, which are as under:-
"36. Few other decisions are also on similar line, one of which is in the case of Dropti Devi (supra), in which the relevant observations are contained in para 79. But since the principle is well enunciated, we would not like to over burden the present Page 2 of 5 Downloaded on : Wed Feb 24 01:12:19 IST 2021 C/SCA/8566/2020 ORDER order. However, the last decision which has been pressed into service by Shri Devnani, learned Assistant Government Pleader is the decision of the Full Bench of this Court in the case of Vijaysinh @ Gatti Pruthvisinh Rathod (supra) to which, we are bound by such proposition. Hence, we deem it proper to refer to and rely upon the following observations made by the Full Bench of this Court. The said observations are contained in para nos. 8 and 9 since, relevant, are reproduced hereinafter:-
[8.0] It is true that in the subsequent decision in the case of Subhash Popatlal Dave (Supra), the Hon'ble Supreme Court has opined that five grounds mentioned in the case of Smt. Alka Subhash Gadia (Supra), on which the order of detention can be challenged at pre-
execution stage are illustrative and not exhaustive. However, the question as to on what other grounds the order of detention at pre execution stage can be challenged is not the subject matter / issue before us. The issue which this Bench is required to answer is observed hereinabove.
[9.0] Having heard learned advocates appearing on behalf of the respective parties and considering the aforesaid decisions of the Hon'ble Supreme Court and even considering the decision of the Division Bench of this Court in the case of Mancharam Samaram Meena (Supra) and the decision of another Division Bench in the case of Chirag @ Vijay Bhikhubhai Chtrabhuj (Supra), we are of the opinion that as there cannot be any controversy and/or dispute that as such the petition challenging the order of detention at predetention / preexecution stage would be maintainable on the grounds permissible. However, such powers are required to be exercised sparingly and in exceptional cases and on the grounds permissible under the law.
We are of the opinion that the view taken by the Division Bench in the case of Mancharam Samaram Meena (Supra) that in a petition under Arcticle 226 of the Constitution of India challenging the order of detention at preexecution / predetention stage the High Court has no jurisdiction at all to call for the original file, the order of detention and the grounds for detention and to undertake the exercise to satisfy, as to whether the order of detention is sustainable or not is impermissible and beyond the jurisdiction of the High Court, cannot be accepted.
Similarly, even the view taken by the Division Bench in the case of Chirag @ Vijay Bhikhubhai Chtrabhuj (Supra) that while considering the challenge to order of detention at predetention/preexecution stage in a petition under Article 226 the Constitution of India, it is the bounden duty of the Court and/or the Court is obliged to call for the order of detention for its own perusal to satisfy itself as to validity of the detention order also cannot be accepted. Considering the decisions of the Hon'ble Supreme Court referred to hereinabove and the powers of the High Court under Article 226 of the Constitution of India are very wide and once it is held that the petition at predetention / preexecution stage is maintainable on the ground which may be available under the law, in an appropriate case being made out on the basis of the averments and the grounds set aside in the memo of petition, the Court in exercise of powers under Article 226 the Constitution of India and so as to satisfy the legality and validity of the order of Page 3 of 5 Downloaded on : Wed Feb 24 01:12:19 IST 2021 C/SCA/8566/2020 ORDER detention on the grounds which may be available at the pre detention/preexecution stage, the Court may in its discretion and subject to its satisfaction call for the relevant file/order of detention / grounds for detention at preexecution stage, however such power shall be exercised sparingly and in exceptional cases and such discretion is to be exercised judicially on well settled principles. However, in all cases the Court is not obliged to do so and undertake such exercise of calling the original file, order of detention and grounds of detention. Similarly, even the detenu cannot claim such exercise of power of calling the order of detention, grounds of detention at predetention / preexecution stage as a matter of right. It is purely discretion of the Court to exercise it's jurisdiction.
[9.1] The sum and substance of the aforesaid discussion would be that in a petition under Article 226 of the Constitution of India challenging the order of detention at predetention / preexecution stage as such the Court is not obliged and/or bound to call for the original file, order of detention and the grounds for detention to satisfy itself whether the order of detention is sustainable or not. However, in an appropriate case being made out on the basis of the averments on affidavit and on the grounds set out in the memo of petition, the Court in its discretion would have jurisdiction to call for the original file, order of detention and grounds for detention so as to satisfy itself the challenge to the order of detention at preexecution stage on the grounds which may be available under the law at the predetention/ preexecution stage, however such powers may be exercised in exceptional and rare cases and such exercise can be undertaken by a Writ Court with extreme care, caution and circumspection.
At the same time, in a petition under Article 226 of the Constitution of India challenging the order of detention at preexecution stage, the detenu as a matter of right cannot seek a Writ of Mandamus directing the detaining authority to produce the original file, order of detention and grounds of detention as otherwise also, as observed by the Hon'ble Supreme Court in catena of decisions, the detenu is not entitled to the grounds of detention unless the order of detention is served and executed upon the detenu.
[10.0]The Reference is answered accordingly. Now, the Registry may place the matters before the learned Single Judge as per the roster, to be decided in accordance with law."
37. We may also refer to the relevant observations contained in para 18 to reproduce, which observation is in concurrence with the view taken by the Full Bench by general majority.
"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 pre-execution stage under Article 226 of the Constitution, the High Court by way of self-Page 4 of 5 Downloaded on : Wed Feb 24 01:12:19 IST 2021 C/SCA/8566/2020 ORDER
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. Secty. 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. Secty. To the Govt,. Of India v. Alka Subhash Gadia (Smt.) (supra)(supra) and Deepak Bajaj Vs. State of Maharashtra & Another, reported in (2008) 16 SCC 14 (supra)."
38. Resultantly, the aforesaid parameters are clearly suggesting that there is no absolute proposition that at the pre-execution stage, keeping in view the concept of liberty enshrined under Article 21 of the Constitution of India, the Court has to in every case, entertain the petition, and as such, the submissions which have been made by the learned Senior Counsel are not acceptable."
6. From the pleadings it is not found as to what basis the apprehension of passing of detention order and the Court is not inclined to serve as inquiry counter to find out as to whether order of detention is passed against the petitioner bereft of necessary pleadings and averments the Court is not inclined to entertain this petition.
In view of the above, the petition stands disposed of accordingly.
(A.Y. KOGJE, J) CAROLINE/Siddharth Page 5 of 5 Downloaded on : Wed Feb 24 01:12:19 IST 2021