Gujarat High Court
Iqbal @ Aslam Umarbhai Taili vs State Of Gujarat on 8 September, 2021
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12983 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI : Sd/-
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
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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IQBAL @ ASLAM UMARBHAI TAILI
Versus
STATE OF GUJARAT
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Appearance:
MR ND NANAVATI, Sr. Adv. with MR. RAHUL R
DHOLAKIA(6765) for the Petitioner(s) No. 1
MS JYOTI BHATT AGP (99) for the Respondent(s) No. 1-5
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 08/09/2021
ORAL JUDGMENT
1. This petition is filed by the petitioner under Article 226 of the Constitution of India for the following reliefs, "(A) xxx xxx xxx.
(B) YOUR Lordships be pleased to issue writ of Page 1 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 mandamus or any other appropriate, writ order or direction and be pleased to direct the detaining authority to place on record of this petition, the order & grounds of detention passed against the petitioner and further be pleased to quash and set aside order of detention passed against the petitioner under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 Act by respondent authorities in purported exercise of powers under the provisions of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 Act at pre- execution stage as being illegal, invalid, null and void, arbitrary, without jurisdiction and competence, suffering from legal mala fides and violative of Art. 14, 19 and 21 of the Constitution of India; (C) Pending admission hearing and final disposal of this petition, YOUR Lordships be pleased to stay the further operation, implementation and execution of the order of detention passed by the respondent no. 2 against the petitioner pending the admission, hearing and final disposal of this petition;
(D) xxx xxx xxx."
2. Heard learned Senior Counsel, Mr. N.D. Nanavati assisted by learned advocate, Mr. Rahul Dholakia Page 2 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 for the petitioner and learned AGP Ms. Jyoti Bhatt for the respondents.
3. It is submitted by learned Senior Counsel for the petitioner that the petitioner is one of the partners of the Company viz., "Shibl Lubricants Co." and the said Company is indulged into the business of recycling of used oil and trading of all kinds of lubricant oils. The said Company, after taking required permission from the concerned authority, is running its business. It is submitted that five different FIRs have been registered against the petitioner under the provisions of the Essential Commodities Act as well as under the provisions of the Indian Penal Code alleging that the accused persons are dealing with bio-diesel for getting monetary benefits, copies of those FIRs are placed on record. It is submitted that the petitioner has been enlarged on bail in connection with four cases out of five cases and in connection with fifth case, the petitioner is in custody, however, the petitioner is having reasonable apprehension that he will be detained under the provision of the Prevention of Black Marketing and Maintenance of Supplies of Page 3 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 Essential Commodities Act, 1980 (hereinafter referred to as "the Act of 1980" for short) and, hence, the petitioner has filed the present petition at pre-detention stage. It is submitted that the petitioner came to know that the respondent authority has passed an order of detention against the petition under the provision of the Act of 1980.
4. Learned Senior Counsel has mainly contended that the provision of the Essential Commodities Act would not be applicable and, therefore, it is not open for the respondent - Detaining Authority to pass an order under the provision of the Act of 1980. Learned Senior Counsel has referred to Section 3 of the Act of 1980 and submitted that the said section empowers the Detaining Authority to pass an order of detention under certain circumstances. It is submitted that as per the aforesaid provision, if the person is dealing in any commodity, which is an essential commodity as defined in Essential Commodities Act, 1955 and the activity of such person is in any manner prejudicial to the maintenance of supplies of commodities essential to the community then, the Page 4 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 Detaining Authority is empowered to pass an order. It is submitted that bio-diesel is not an essential commodity and, therefore, the provision of Essential Commodities Act would not be applicable.
5. Learned Senior Counsel, at this stage, has also referred to the provision contained in Section 2(A) of the Essential Commodities Act and, thereafter, referred to the Schedule of the said Act. It is contended that bio-diesel is not an essential commodity and, therefore, it is not open for the respondent authority to pass an order under Section 3 of the Act of 1980.
6. Learned Senior Counsel, thereafter, has supplied separate compilation of the judgments and from the said compilation, it is pointed out that this Court has passed an order on 28.11.2014 in Special Criminal Application No.1088/2010, wherein this Court has observed that for bio-diesel, license is not required. Learned Senior Counsel, at this stage, has also referred to the order dated 03.02.2015 passed by the Bombay High Court in a Writ Petition No.3297/2014. It is submitted that the Bombay High Court has issued notice by an Page 5 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 order dated 03.02.2015 by observing that prima facie the action cannot be taken against the concerned person, who is dealing with the manufacturing, storage, distribution, contracting and sale of bio-diesel, which does not fall within the definition of petroleum or petroleum products. Learned Senior Counsel has also referred to interim order dated 03.02.2020 passed by this Court in Special Civil Application No.2857/2020, wherein the notice has been issued. Thus, learned Senior Counsel submits that when the provision of Essential Commodities Act is not applicable to the facts of the present petitioner, it is not open for the Detaining Authority to pass an order of detention under the provision of the Act of 1980.
7. Learned Senior Counsel has placed reliance upon the decision rendered by the Hon'ble Supreme 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 and more particularly, has referred to Para No.30 of the said Judgment, wherein the Hon'ble Supreme Court has observed that the Court can exercise the power at pre-execution stage if the order of detention Page 6 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 is passed by the Detaining Authority. It is contended that the case of the petitioner falls under the Category Nos.III & V of the aforesaid decision. Thus, this Court is empowered to consider the case of the petitioner at pre- execution stage.
8. Learned Senior Counsel further submits that the citizen cannot be detained except in accordance with law and if the order of detention is not passed in accordance with law and if the respondent authority has violated the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India, this Court may quash and set aside the proposed order of detention.
9. Learned Senior Counsel has also placed reliance upon the decision rendered by the Hon'ble Supreme Court in case of Subhash Popatlal Dave Vs. Union of India & Anr., reported in (2014) 1 SCC 280, more particularly, Paragraph Nos.39 and 57.
10. Learned Senior Counsel has, thereafter, submitted that the Division Bench of this Court while passing an order dated 18.06.2020 in Letters Patent Appeal No.108/2020 has not considered the aforesaid decision rendered in case of Subhash Page 7 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 Popatlal Dave (Supra).
11. Learned Senior Counsel has, therefore, urged that when the respondent authority is not empowered to pass any order under the provision of the Act of 1980 in case of the petitioner, the order, if any, passed by the respondent authority be quashed and set aside.
12. On the other hand, learned Assistant Government Pleader has opposed this petition and contended that this Court may not exercise the powers under Article 226 of the Constitution of India in favour of the petitioner in the facts of the present case. It is submitted that this Court can exercise the power in exceptional case and the petitioner has failed to point out that his case is an exceptional case. It is also submitted that the case of the petitioner does not fall under any of the categories as mentioned in Para No.30 of the decision rendered by the Hon'ble Supreme Court in case of Alka Subhash Gadia (supra).
13. Learned AGP has placed reliance upon the order passed by the Division Bench of this Court in Letters Patent Appeal No.108/2020, more particularly, referred to Para Nos.45 to 48 of the Page 8 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 said order.
14. Learned AGP has placed reliance upon the judgment rendered by the Full Bench of this Court in case of Vijaysinh @ Gatti Pruthvisinh Rathod Vs. State of Gujarat, reported in 2015 (1) GLR 703 as well as the order dated 03.12.2020 passed by this Court in Special Civil Application No.13681/2020. Learned AGP has also placed reliance upon the decision rendered by the Hon'ble Supreme Court in case of State of Maharashtra & Ors. Vs. Bhaurao Punjabrao Gawande, reported in (2008) 3 SCC 613.
15. Learned AGP has, thereafter, contended that the petitioner has not placed on record an order of detention nor the petitioner is aware that in fact, the order of detention has been passed against him or not, therefore in absence of any material available with the petitioner, it is not open for him to contend that the so-called order of detention is passed for a wrong purpose and the authority has no power to pass such order. It is, therefore, urged that this petition may not be entertained.
16. I have considered the submissions canvassed by learned advocates appearing for the parties. I Page 9 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 have also perused the material placed on record. From the records, it would emerge that the present petition is filed by the petitioner on the basis of the apprehension that the order of detention would be passed against the petitioner, which is also evident from the averments made in the petition. Para No.4 of the memo of petition reads as under, "4. The petitioner states and submits that in view of the aforesaid FIRs, the petitioner apprehended that the petitioner would be subjected to the preventive detention under Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. ........." Thus from the aforesaid averments, it is clear that the petitioner is having apprehension that the order of detention will be passed on the basis of the five FIRs, which are filed against him.
17. At this stage, it is pertinent to note that the case of the petitioner is that five FIRs have been registered against him under the provision of the Essential Commodities Act as well as under the provision of the Indian Penal Code as the petitioner is dealing in the business of bio- Page 10 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 diesel. It is the case of the petitioner that the bio-diesel is not an essential commodity under the provision of the Essential Commodities Act and, therefore, the concerned respondent authority is not empowered to pass an order of detention under Section 3 of the Act of 1980. However, it is required to be noted at this stage that the petitioner has not filed any proceeding for quashing and setting aside those FIRs, which are filed against him, on the ground that the provision of the Essential Commodities Act would not be applicable to his case and, therefore, the said FIRs be quashed and set aside. Learned Counsel for the petitioner has placed reliance upon the interim order dated 03.02.2015 passed by the Bombay High Court, wherein the Bombay High Court has made certain prima facie observation, however, learned Counsel has failed to point out about the final order passed by the Bombay High Court in the said writ petition. Similarly, learned Counsel has placed reliance upon the interim order dated 03.02.2020 passed by this Court in Special Civil Application No.2857/2020, wherein in Paragraph No.2 of the said order, this Page 11 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 Court has recorded the submissions of learned advocate for the petitioner and, thereafter, directed the State Government to make its stand clear on the policy of bio-diesel, however, learned Counsel has failed to point out about the policy of the Government or the final order passed by this Court in the aforesaid petition.
Further, it is pertinent to note that while passing an order dated 28.11.2014 in Special Criminal Application No.1088/2010, this Court was considering the orders passed by the Collector as well as Additional Sessions Judge, whereby it was ordered to confiscate Ginol and also considering the issue as to whether product Ginol can be considered as essential commodity or not? This Court has made observation that the licence is not required in dealing with Ginol and there is passing reference with regard to bio-diesel on the basis of one communication from the concerned department to the concerned person. Thus, the aforesaid decision would not render any assistance to the petitioner in support of his contention that bio-diesel is not an essential commodity. In this petition also, it is not open for this Court Page 12 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 to examine as to whether the bio-diesel is an essential commodity or not. As observed hereinabove, the petitioner has failed to place on record an order of detention, if any passed against the petitioner.
18. Thus keeping in view the aforesaid factual aspects, this Court would like to refer to relevant decisions referred to and relied upon by the Hon'ble Supreme Court.
19. In case of Alka Subhash Gadia (supra)., it is observed in Paragraph No.30 as under, "30 As regards his last contention, viz., that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Art. 22 thereof nor the Act in question places any restriction on the powers of the High court Page 13 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 and this court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self- evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved person First allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High court and this court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the Page 14 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri Jain's present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for alimited period. Thirdly, and this is more important, it is not correct to say that the courts have no , power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in a proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have Page 15 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 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 detenu, but prevents their abuse and the perversion of the law in question."
20. In case of Subhash Popatlal Dave (supra), it is observed in Paragraph Nos.2 and 93 as under,
2. A common question initially arose in all these matters as to whether detention order passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (shortly referred to as 'the COFEPOSA Act 1974) could be challenged at the pre- execution stage confined to the five exceptions carved out by this Court in the case of Additional Secretary to the Govt. of India And Ors. vs. Alka Subhash Gadia And Anr. 1992 Supp (1) SCC 496 or whether such challenge could be maintained inter alia on other grounds. This Court (Bench) Page 16 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 has already delivered a judgment on this question vide judgment and order dated 10.07.2012 reported in (2012) 7 SCC 533 that the right of a proposed detenue to challenge a preventive detention order passed against him may be challenged at the pre-execution stage on grounds other than those set out in paragraph 30 of the judgment in Alka Subhash Gadia's case and it was held therein that the order of preventive detention can be challenged beyond the five conditions enumerated in Alka Subhash Gadia's case. To make it explicitly clear it may be reiterated that this Court has already held that the order of preventive detention can be challenged beyond the five grounds which have been enumerated in the case of Alka Subhash Gadia's case even at the pre-execution stage.
"93. As far as the first ground of challenge is concerned, we have already indicated in our earlier order of 10th July, 2012, that the five exceptions culled out in Alka Subhash Gadia's case were not intended to be exclusive and that the decision in Sayed Taher Bawamiya's case could not be accepted. We had indicated that it was not the intention of the Hon'ble Judges in Alka Subhash Gadia's case to confine the challenge at the pre-execution stage only to the five exceptions mentioned therein, Page 17 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 as that would amount to stifling and imposing restrictions on the powers of judicial review vested in the High Courts and the Supreme Court under Articles 226 and 32 of the Constitution. After considering other decisions delivered on the aforesaid proposition, after the decision in Alka Subhash Gadia's case, we had also held that the exercise of powers vested in the superior Courts in judicially reviewing executive decisions and orders cannot be subjected to any restrictions, as such powers are untrammelled and vested in the superior Courts to protect all citizens and non-citizens, against arbitrary action. As submitted by Mr. Rohatgi at the very beginning of his submissions, we had indicated that law is never static, but dynamic and that the right to freedom being one of the most precious rights of a citizen, the same could not be interfered with as a matter of course and even if it is in the public interest, such powers would have to be exercised with extra caution and not as an alternative to the ordinary laws of the land."
21. In a judgment of Full Bench in case of Vijaysinh @ Gatti Pruthvisinh Rathod, it is observed in Paragraph No.9.1 as under, "[9.1] The sum and substance of the aforesaid discussion would be that in a petition Page 18 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 under Article 226 of the Constitution of India challenging the order of detention at pre-detention / pre-execution 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 pre- execution stage on the grounds which may be available under the law at the pre- detention / pre-execution 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 pre- execution 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 Page 19 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 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."
22. In a judgment of Division Bench of this Court in Letters Patent Appeal No.108/2020, it is observed in Paragraph Nos.25, 31 and 36 as under,
25. In the present case, the appellant, herein, thought fit to challenge the detention order at the pre-execution stage without having knowledge about the reasons and / or grounds for issuance of the detention order, and therefore, could not have questioned the validity and / or sufficiency of the reasons for issuance of the impugned detention order, at that stage. In the absence of service of the impugned detention order, the relevant materials, containing the reasons and / or grounds for issuance of the said impugned order of detention, could not be disclosed to the appellant nor the learned Single Judge had any opportunity to examine such materials, at that stage. Indisputably, at the pre-execution stage, the scope for challenging the order of detention is very limited. An order of detention can be struck down at the pre-execution stage, in the rarest of rare case on certain specified limited grounds, which have been summarized by the Hon'ble Supreme Court of Page 20 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 India in the case of Additional Secretary to the Government of India Vs. Smt. Alka Subhash Gadia & Anr.", (Supra).
31. It is clear that the Court was also of the opinion that in some genuine and exceptional cases, power can be exercised by the Courts to interfere with the detention order even at the pre-execution stage. However, the detenu cannot claim such exercise of power as a matter of "right" and it is purely a discretion of the Court, which has to be exercised judicially on well settled principles. This is so stated in the following words:
"32...Thirdly, in the rare cases where the detenu, before being served with them, learns of the detention order and the grounds on which it is made, and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the pre execution stage, of course, on the very limited grounds stated above. The Court no doubt even in such eases is not obliged to interfere with the impugned order at that stage and may insist that the detenu should first submit to it. It will, however, depend on the facts of each case. The decisions and the orders cited above show that in some genuine cases, the Page 21 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 Courts have exercised their powers at the pre-execution stage, though such cases have been rare. This only emphasises the fact that the courts have power to interfere with the detention orders even at the pre-
execution stage but they are not obliged to do to not will it be proper for them to do so save in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well-settled principles."
36. The appellant does not have a copy of the same, and therefore, we are not impressed by the submissions of Mr. Mangukiya that the learned Single judge ought to have called for the relevant files and should have undertaken the exercise to satisfy itself, as to whether the order of detention was sustainable, having regard to the grounds on which the same was passed. As held by the Full Bench of this High Court in the case of Vijay Singh @ Gatti Pruthvisingh Rathod vs State of Gujarat decided on 3 rd December 2014, if the order of detention is challenged at the pre- execution stage under Article 226 of the Constitution of India, the High Court by way of self imposed restriction may examine as to whether the case is covered by the Page 22 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 criteria laid down by the Apex Court in the case of Alka Gadia (supra) and Dipak Bajaj (supra) and thereafter may call for the relevant record from the detaining authority, but, such would depend upon sound exercise of judicial discretion of the High Court under Article 226 of the Constitution and it cannot be said that in all cases, it would be obligatory for the High Court to satisfy itself as to whether the detention order, if any, is passed in consonance with the scheme of the enactment under which the detention order is passed.
23. In the order dated 03.12.2020 passed by this Court in Special Civil Application No.13681/2020, it is observed in Paragraph Para No.14 as under, "14. It is also further clear that the petition cannot be entertained though the same is maintainable, more particularly, at pre- execution stage even if the order of detention is passed against co-accused. In the present case, there is no averment in the petition that the order of detention has been passed even against co-accused. The tenor of the petitions that are filed in the Court indicate that the burden shifted on the Court to inquire into from the respondent detaining authorities as to whether there is a case for the detaining authority to pass an order of detention, the Courts cannot be made substitutes of Page 23 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 detaining authorities to inquire into the mind of the detaining authority to suggest whether the detention orders are necessary to be passed."
24. From the aforesaid decisions rendered by the Hon'ble Supreme Court, it can be said that if the order of detention is challenged at pre-execution stage under Article 226 of the Constitution of India, the High Court by way of self-imposed restriction may examine as to whether the case is covered by the guidelines laid down by the Hon'ble Supreme Court in case of Alka Subhash Gadia (supra) and, thereafter, may call for 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 of India 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. As a general rule, an order of detention passed by the Detaining Authority under the relevant preventive detention law cannot be set aside by the Writ Court at the Page 24 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 pre-execution or pre-arrest stage unless the Court is satisfied that there are exceptional circumstances as specified in case of Alka Subhash Gadia (supra). The interference by the Court at the stage of pre-execution must be an exceptional rather than a rule and such an exercise can be undertaken by the Writ Court with extreme care, caution and circumspection. It is clear that the detenue 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 orders. It is further clear that if in every case, a detenue is permitted to challenge and seek stay of operation of the order before its execution, very purpose of the order and the law under which it is to be made, will be frustrated.
25. It is also pertinent to note that in exceptional cases, the Courts can exercise the power and, thereafter, interfere with the order of detention even at pre-execution stage, however, the detenue cannot claim such right as a matter of fact and it is purely a discretion of the Court, which has to be exercised judicially on well settled principles.
Page 25 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 Further, it appears from the averments made in the petition that the petitioner is having apprehension that the order of detention will be passed against him and, therefore, burden is shifted upon the Court to inquire into from the respondent - Detaining Authority as to whether there is case for the Detaining Authority to pass an order of detention or not. This Court has already observed in the decision rendered on 03.12.2020 in Special Civil Application No.13681/2020 that the Courts cannot be made substitutes of detaining authorities to inquiry into the mind of the detaining authority to suggest whether the detentions orders are necessary to be passed. Even the aforesaid order dated 03.12.2020 passed by this Court in Special Civil Application No.13681/2020 has attained finality.
26. It is also contended by learned Senior Counsel, Mr. Nanavati that the preventive detention endangers the fundamental rights of personal liberty of a citizen as guaranteed under Article 21 of the Constitution of India. The preventive detention can be justified or satisfied only if Page 26 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 there is cogent and convincing evidence or material on record. It was also submitted by learned Senior Counsel that mere registration of the FIRs before different Police Stations is not sufficient to pass the order of preventive detention. It is further contended that if the person, against whom the order of preventive detention has been passed, comes to the Court at the pre-execution stage and satisfies that the detention order is illegal, there is no reason as to why the Court should stay its hand and allow such person to come to jail even though he is bound to be released subsequently.
It is pertinent to note at this stage that similar type of contentions were raised by the concerned advocate appearing for the appellant (proposed detenue) in Letters Patent Appeal No.108/2020 and the Division Bench of this Court has considered the aforesaid contentions raised by the concerned advocate and, thereafter, dismissed the said Letters Patent Appeal.
27. Here in the present case, it is presumed by the petitioner that five different FIRs filed against him under the provision of the Essential Page 27 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 Commodities Act are required to be quashed and set aside as the provision of the Essential Commodities Act would not be attracted. Hence, the proposed order of detention, which is likely to be passed against the petitioner under the Act of 1980 on the basis of the said FIRs, is to be quashed and set aside. This Court is of the view that the aforesaid contention is misconceived. First of all, the petitioner has presumed that all the FIRs, which are filed against him, are not tenable and, therefore on the basis of the same, the order of detention cannot be passed against the petitioner. This Court is of the view that it is not open for this Court in the present petition to examine as to whether all five FIRs, which are filed against the petitioner, are in fact required to be quashed and set aside as the provision of the Essential Commodities Act are not applicable to the facts of the petitioner.
28. As observed hereinabove, it is not in dispute that five different FIRs have been filed against the petitioner and in the facts of the present case, this Court is of the view that the case of the petitioner does not fall within Clause - III & V Page 28 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 of the guidelines issued by the Hon'ble Supreme Court in case of Alka Subhash Gadia (supra). Further, the case of the petitioner cannot be treated as rare or exceptional case. Hence, this Court is not inclined to exercise of the powers under Article 226 of the Constitution of India at pre-detention/ pre-execution stage in favour of the petitioner. At this stage, this Court would like to refer to the decision rendered by the Hon'ble Suprem Court in case of Bhaurao Punjabrao Gawande (supra), wherein the Hon'ble Supreme Court has observed in Paragraph Nos.36, 42 and 63 as under, "36. Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical need of preventive detention with a view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand and security and safety of the country and interest of the society on the other hand. Security of State, maintenance of public order and services essential to the community, prevention of smuggling and black marketing activities, etc. demand effective Page 29 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 safeguards in the larger interests of sustenance of a peaceful democratic way of life.
42. On this question, our attention has been invited by the learned counsel for both the sides to several decisions of this Court. Having gone through those decisions, we are of the view that normally and as a general rule, an order of detention can be challenged by the detenu after such order as also the grounds of detention have been received by him and the order is executed. In exceptional cases, however, a High Court or this Court may exercise extraordinary powers to protect a person against an illegal invasion of his right to freedom by protecting him while still he is free by issuing an appropriate writ, direction or order including a writ in the nature of mandamus questioning an order of detention and restraining the authorities from interfering with the right of liberty of an individual against whom such order is made.
63. From the foregoing discussion, in our judgment, the law appears to be fairly well- settled and it is this. As a general rule, an order of detention passed by a Detaining Authority under the relevant 'preventive detention' law cannot be set aside by a Writ Court at the pre-execution or pre-arrest stage unless the Court is satisfied that there are exceptional Page 30 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 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 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."
29. Learned Senior Counsel has placed reliance upon the decision rendered by the Hon'ble Supreme Court in case of Subhash Popatlal Dave (supra), wherein the Hon'ble Supreme Court has held that the order of preventive detention can be challenged beyond five grounds, which have been enumerated in the judgment rendered in case of Alka Subhash Gadia (supra) even at pre-execution stage. However in the present case, it is the specific case of the petitioner that his case falls under the Categories - III & V of the guidelines issued by Page 31 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 the Hon'ble Supreme Court in case of Alka Subhash Gadia (supra) and not in any other category. Thus, the aforesaid decision would not render any assistance to the petitioner in the facts of the present case. It is pertinent to note that this Court is of the view that in view of the aforesaid discussion, the case of the petitioner does not fall in the aforesaid categories and the case of the petitioner is not rare or exceptional case. Hence, this Court is not inclined to exercise the power under Article 226 of the Constitution of India.
30. It is also well settled that equitable jurisdiction under Article 226 of the Constitution of India, which is discretionary in nature, should not be exercised ordinarily where the proposed detenue successfully evades the service of the order. If, in every case, the detenue is permitted to challenge and seek stay of the operation of the order before its execution, the very purpose of the order and the law under which it is made, will be frustrated. However, as observed hereinabove, the powers can be exercised in exceptional and rate cases if the case of the detenue falls under Page 32 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021 C/SCA/12983/2021 JUDGMENT DATED: 08/09/2021 any of the categories mentioned in the decision rendered by the Hon'ble Supreme Court in case of Alka Subhash Gadia (supra).
31. Even as per the decision of the Full Bench of this Court in case of Vijaysinh @ Gatti Pruthvisinh Rathod (supra), 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. Therefore in the facts of the present case also, this Court is not inclined to call for the file and/or to examine the proposed order of detention.
32. Therefore in the facts of the present case, this Court is not inclined to exercise the power in favour of the petitioner. Accordingly, the present petition is dismissed.
Sd/-
(VIPUL M. PANCHOLI, J.) Gautam Page 33 of 33 Downloaded on : Sat Oct 09 13:29:03 IST 2021