Gujarat High CourtRavi @ Ravindra Chandrakantbhai ... vs The Commissioner Of Police ... on 1 October, 2020Bench: Biren VaishnavC/SCA/11989/2020                                      ORDER\n\n\n\n\n        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n         R/SPECIAL CIVIL APPLICATION NO. 11989 of 2020\n\n==========================================================\n          RAVI @ RAVINDRA CHANDRAKANTBHAI BAROT\n                           Versus\n        THE COMMISSIONER OF POLICE AHMEDABAD CITY\n==========================================================\nAppearance:\nMR SANJAY PRAJAPATI(3227) for the Petitioner(s) No. 1\nfor the Respondent(s) No. 1,3\nMR. ISHAN JOSHI, ASSISTANT GOVERNMENT PLEADER/PP(99) for the\nRespondent(s) No. 2\n==========================================================\n\n CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV\n\n                             Date : 01/10/2020\n\n                              ORAL ORDER1    Heard Mr.Sanjay Prajapati, learned advocate for the\n\npetitioner     and        Mr.Ishan       Joshi,   learned        Assistant\n\nGovernment Pleader, for the State.2    In case of pre-detention matter, this Court, by an\n\norder dated 11.08.2020 in Special Civil Application No.\n\n9008 of 2020 has held as under:"1 Heard Mr.Sudhanshu Patel, learned advocate for the petitioner\n     and Mr.Adityasinh Jadeja, learned AGP, for the respondents.2 This is a petition challenging the order at the pre-detention\n     stage. The case of the petitioner is that the order of detention is\n     likely to be passed on the basis of a solitary offence under theProhibition Act. Perusal of the petition would indicate that\n     averments are made in the petition that the petition is filed at the\n     pre-execution stage as the order of detention suffers from nonPage 1 of 7Downloaded on : Fri Oct 02 02:59:45 IST 2020C/SCA/11989/2020                                      ORDER\n\n\n\napplication of mind. Reading of para 5 of the petition would\nindicate that it is the case of the petitioner that on 16.07.2020, an\noffence came to be registered with Singanpor - Dabholi Police\nStation, wherein, it is stated that when the complainant and the\npolice authority were at the police station, they had received a\nsecret information that one white coloured Eon Car loaded with\nliquor is going to come from Dhanjiram Char Rasta. The\napprehension of the petitioner, therefore, is that based on the\nsolitary offence, the respondent No.2, proposes to pass a\ndetention order.3 Mr.Sudhanshu Patel, learned advocate for the petitioner, relies\non the decision of the Division Bench rendered in Letters Patent\nAppeal No. 1644 of 2019 dated 27.12.2019. Learned advocate\nrelies on paras 21, 26 and 41 of the decision, which read as\nunder:"21.The detention order can be challenged by way of\n       Habeas Corpus Petition underArticle 226of the\n       Constitution of India, however, only on limited grounds as\n       have now been settled by various pronouncements of the\n       Hon'ble Supreme Court and Full Bench of this Court. It is\n       also well settled that writ petition would be maintain a\n       bleeven at the stage of pre-execution of the detention order\n       by claiming relief of writ of mandamus restraining the\n       authorities from detaining or from passing a detention\n       order. Reference may be had to :(i)Additional Secretary to\n       the Government of India v/s Alka Subhash Gadia & Anr.\n       reported in1992(Supp 1) SCC 496,(ii) State Of\n       Maharashtra & Ors. v/s Bhaurao Punjabrao Gawande\n       reported in 2008(3) SCC613, (iii)Deepak Bajaj v/s State of\n       Maharashtra reported in 2008(16) SCC 14, and(iv)Rekha\n       v/s State of Tamil Nadu Tr. Sec. to Govt.& Anr. reported in\n       2011(5) SCC 244, (v)Subhash Popatlal Dave v/s Union of\n       India & Anr.Reported in 2012(7) SCC 533,(vi)Vijaysinh @\n       Gatti Pruthvisinh Rathod v/s State of Gujarat & Another\n       reported in2015(1) Gujarat Law Reporter 703(FB).XXX XXX XXX26.From the above position of law and the scheme of the\n       Act, what clearly emerges is that although a writ-petition\n       underArticle 226of the Constitution of India filed at the\n       stage of pre-execution of detention order or under the\n       apprehension of a detention order being passed, would be\n       maintainable, however, on very limited scope of judicial\n       review. The grounds for maintaining such petition and\n       interfering at the stage of pre-execution of a detention\n       order would be very limited as laid down by the Supreme\n       Court in various judgments referred above. Further, afterPage 2 of 7Downloaded on : Fri Oct 02 02:59:45 IST 2020C/SCA/11989/2020                                       ORDER\n\n\n\n       the detention order is executed, writ of habeas corpus\n       would be maintainable wherein this Court under its\n       extraordinary power underArticle 226of the Constitution\n       may examine the correctness of a detention order on\n       available grounds and if it finds that such detention order is\n       not sustainable or the procedure prescribed for exhausting\n       various remedies available to the detenue, is not strictly\n       adhered to, may allow the same and set the detenue at\n       liberty forthwith.XXX XXX XXX41.It is not in every case where offence is committed under\n       the various statutory enactments that preventive measures\n       are to be taken. It is only in those rare and special cases\n       where such person involved in violation of law causes a\n       threat to maintenance of public order that process under\n       the PASA starts."4 According to Mr.Patel, learned advocate for the petitioner, the\napprehension of the petitioner is also well founded as the co-\naccused who was detained has been subsequently released.\n5 Learned Assistant Government Pleader has drawn the attention\nof this Court to a judgment passed in Special Civil Application No.\n7755 of 2020 dated 26.06.2020 (Coram : Hon'ble Mr.Justice\nG.R.Udhwani). The said decision read as under:"1.All these petitions have been filed under the Gujarat\n       Prevention of Antisocial Activities Act (for short 'the Act') at\n       a stage where no order of detention has been passed.2.Insofar as Special Civil Application No.7028 of 2020 is\n       concerned, learned counsel Mr. Prajapati has invited\n       attention of this Court to the averments that the proposal to\n       detain the petitioner has been made and the order has\n       been passed by the respondent No.2. Learned Assistant\n       Government Pleader Ms. Megha Chitaliya under\n       instructions of Head Constable Mr.Ghanshyamsinh, PCB,\n       Ahmedabad, states that proposal is pending but no order is\n       made. Thus, the statement that the detention order is\n       passed does not seem to be accurate.3.It is unnecessary for this Court to address these petitions\n       on the following decisions cited at the bar; since in view of\n       the decision rendered incase of Piyush @ Lakahn\n       Manojbhai Bhavsar Vs. The Police Commissioner and\n       others in Letters Patent Appeal No.1281 of 2018 decided\n       on 08.10.2018 holding that:"... While it is open for the appellant to file such a\n               petition, when the order of detention is passed, if\n               there is any ground available to challenge the same\n               before the same is executed, but at the same time, ifPage 3 of 7Downloaded on : Fri Oct 02 02:59:45 IST 2020C/SCA/11989/2020                                      ORDER\n\n\n\n            order of detention is not passed under the provisions\n            of PASA Act, no such petition can be maintained\n            seeking the relief as sought for.", all these petitions\n            instituted at pre-detention order stage cannot be\n            entertained.(1)Subhash Popatlal Dave Vs. Union of India and\n            Another [(2014) 1 SCC 280]\n            (2)Suresh @ Sukho Jagubhai Patel through Vipul\n            Amrutbhai Vs. State of Gujarat and Others [(2011) 2\n            GLH 616]\n            (3)State of Maharshtra and Others Vs. Bhaurao\n            Punjabrao Gawande [(2008) 3 SCC 613];\n            (4)Additional Secretary to the Government of India\n            and Others Vs. Smt. Alka Subhash Gadia and\n            Another [1992 Supp. (1) SCC 496];(5)Mohmeddanis Anwarahmed Rajput Vs. State of\n            Gujarat Patent Appeal No.1694 of 2019, decision\n            dated 03.10.2019];(6)Ramju      Rafikbhai     Daireya     through    uncle\n            Gaffarbhai Abdulbhai Ganchi (Duareya) Vs. State of\n            Gujarat [Special Civil Application No.7249 of 2020,\n            decision dated 09.06.2020];(7)Vijaysinh @ Gatti Pruthvisinh Rathod Vs. State of\n            Gujarat [Special Civil Application No.5664 of 2014\n            and other allied matters, decision dated 03.12.2014];\n            (8)Rameshbhai Jagubhai Patel Vs. State of Gujarat\n            [Letters Patent Appeal No.1339 of 2018];\n            (9)Jignesh Alias Lalo Shashikantbhai Chotalal\n            Dabheliya Vs. State of Gujarat [2019(1) GLR 457];\n            (10)Mehtab Aharar Sikandar Sheikh Vs. State of\n            Gujarat [2014 Cr.L.J. 2384];(11)Poonamben @ Tasleem D/o. Ajitsingh Rana Vs.\n            Stateof Gujarat [Special Civil Application No.1606 of\n            2019, decision dated 06.03.2020].4.According to learned counsel Mr.Mujmudar since the\n      case of Piyush (supra)was eventually withdrawn, the\n      proposition of law cannot be said to have been laid as\n      above in the said decision. This Court is unable to accede\n      to the said submission for the simple reason that the\n      statement of law is found in the order and was maintained\n      even while allowing the withdrawal of the same.5.The petitions are therefore dismissed with no order as to\n      costs."6 The question of entertaining a pre-detention petition, therefore,\nis completely a discretion that the court will exercise underArticle\n226of the Constitution of India. The tenor of the petitions that arePage 4 of 7Downloaded on : Fri Oct 02 02:59:45 IST 2020C/SCA/11989/2020                                        ORDER\n\n\n\nfiled in the Court indicate that the burden shifted on the Court to\ninquire into from the respondent detaining authorities as to\nwhether there is a case for the detaining authority to pass an\norder of detention, the Courts cannot be made substitutes of\ndetaining authorities to inquire into the mind of the detaining\nauthority to suggests whether the detention orders are necessary\nto be passed.7 This Court in Special Civil Application No. 9554 of 2014 in a\ndecision rendered on 03.07.2015 considered Full Bench decision\nof this Court in the case of Vijaysinh @ Gatti Pruthvisinh Rathod\nvs.State of Gujarat & Anr., and in para 5, Hon'ble Mr.Justice\nA.J.Desai, eloquently concluded para 9.1 and 9.5 of the decision,\nwhich read as under:"[9.1] The sum and substance of the aforesaid discussion\n        would be that in a petition underArticle 226of the\n        Constitution of India challenging the order of detention at\n        pre- detention / pre execution stage as such the Court is\n        not obliged and/or bound to call for the original file, order of\n        detention and the grounds for detention to satisfy itself\n        whether the order of detention is sustainable or not.\n        However, in an appropriate case being made out on the\n        basis of the averments on affidavit and on the grounds set\n        out in the memo of petition, the Court in its discretion would\n        have jurisdiction to call for the original file,order of\n        detention and grounds for detention so as to satisfy itself\n        the challenge to the order of detention at preexecution\n        stage on the grounds which may be available under the law\n        at the predetention / preexecution stage, however such\n        powers may be exercised in exceptional and rare cases\n        and such exercise can be undertaken by a Writ Court with\n        extreme care,caution and circumspection. At the same\n        time, in a petition underArticle 226of the Constitution of\n        India challenging the order of detention at preexecution\n        stage, the detenue as a matter of right cannot seek a Writ\n        of Mandamus directing the detaining authority to produce\n        the original file, order of detention and grounds of detention\n        as otherwise also, as observed by the Honble Supreme\n        Court in catena of decisions, the detenu is not entitled to\n        the grounds of detention unless the order of detention is\n        served and executed upon the detenu. His Lordship Jayant\n        Patel, J., in para 18, made the following observations :[18]. Hence, the reference can be answered as\n               under:(1) As both the Division Benches of this Court in the\n               case of Manchharam Samaram Meena vs. State of\n               Gujarat(supra) and in the case of Chirag @ VijayPage 5 of 7Downloaded on : Fri Oct 02 02:59:45 IST 2020C/SCA/11989/2020                                         ORDER\n\n\n\n             Bhikhubhai Chitrabhuj vs. State of Gujarat (supra)\n             are not on disagreement for the maintainability of the\n             petition for challenging the order of detention underArticle 226of the Constitution at the pre execution\n             stage, no further view deserves to be expressed.\n             (2) Further, if the order of detention is challenged at\n             preexecution stage underArticle 226of the\n             Constitution, the High Court by way of self imposed\n             restriction may examine as to whether the case is\n             covered by the criteria laid down by the Apex Court\n             in the case of Addl.Secy. To the Govt. of India v.\n             Alka Subhash Gadia (Smt.)(supra) and Deepak Bajaj\n             Vs.State of Maharashtra & Another, reported in\n             (2008) 16SCC 14 (supra) and thereafter may call for\n             the relevant record from the detaining authority, but\n             such would depend upon sound exercise of judicial\n             discretion of the High Court underArticle 226of the\n             Constitution and it cannot be said that in all cases, it\n             would be obligatory for the High Court to satisfy itself\n             as to whether the detention order is passed in\n             consonance with the scheme of the enactment under\n             which the detention order is passed or whether the\n             detention order suffers from the vice of illegality or\n             not, save and except the criteria as laid down by the\n             Apex Court in the case of Addl.Secy. To the Govt. of\n             India v. Alka Subhash Gadia (Smt.)(supra) and\n             Deepak Bajaj Vs. State of Maharashtra & Another,\n             reported in(2008) 16 SCC 14 (supra).(3) The High Court while exercising the power under\n             Article226 of the Constitution of India in a petition for\n             challenging the order of detention at the\n             preexecution stage may bear in mind the\n             observations made by the Apex Court in the case of\n             State of Maharashtra @ Ors. Vs. Bhaurao Punjabrao\n             Gawande (supra) at paragraph 63 relevant of which\n             reads asunder:63.&.. As a general rule, an order of detention\n             passed by a Detaining Authority under the relevant\n             preventive detention law cannot be set aside by a\n             Writ Court at the pre execution or pre arrest stage\n             unless the Court is satisfied that there are\n             exceptional circumstances specified in Alka Subhash\n             Gadia. The Court must be conscious and mindful of\n             the fact that this is a suspicious jurisdiction i.e.\n             jurisdiction based on suspicion and an action is\n             taken with a view to preventing a person from actingPage 6 of 7Downloaded on : Fri Oct 02 02:59:45 IST 2020C/SCA/11989/2020                                  ORDER\n\n\n\n                    in any manner prejudicial to certain activities\n                    enumerated in the relevant detention law.\n                    Interference by a Court of Law at that stage must be\n                    an exception rather than a rule and such an exercise\n                    can be undertaken by a Writ Court with extreme\n                    care, caution and circumspection. A detenu cannot\n                    ordinarily seek a writ of mandamus if he does not\n                    surrender and is not served with an order of\n                    detention and the grounds in support of such order."\n        8 In view of this position and the decisions considered by this\n        Court (Coram : Hon'ble Mr.Justice G.R.Udhwani) of the Supreme\n        Court as referred to in para three thereof, the petition is\n        dismissed."3       Considering the fact that even in that case the\n\nargument was that a co-accused had been released,\n\nmerely because in the case of a co-accused, as argued by\n\nMr.Prajapati, learned advocate, that the Court has\n\nentertained the petition and granted interim relief, will\n\nnot pre-empt this Court from not exercising jurisdiction in\n\nfavour of the petitioner.4       For the aforesaid reasons stated in Special Civil\n\nApplication No. 9008 of 2020, the petition is dismissed.(BIREN VAISHNAV, J)\nBIMAL / MEHUL B. TUVARPage 7 of 7Downloaded on : Fri Oct 02 02:59:45 IST 2020