IMPORTANT POINT
In respect of each of the rights specified in sub-clauses of Art. 19(1) specific limitations in respect of each is provided while the expression “personal liberty” in Art. 21 is generally controlled by the general expression “procedure established by law.” The Constitution, in Art. 19, also in other Articles in part III, thus attempts to strike a balance between individual liberty and the general interest of the society. The restraints provided by the Constitution on the legislative powers or the executive authority of the State thus operate as guarantees of life and personal liberty of the individual.

JUDGMENT :

J.B. PARDIWALA, J.

1. This Appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful writ-applicant (detenue) of a writ application and is directed against the judgment and order passed by a learned Single Judge of this Court dated 27th August 2020 in the Special Civil Application No. 9868 of 2020, by which the learned Single Judge rejected the writ-application filed by the appellant herein, challenging the order of preventive detention passed under the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short “the Act 1985”), on the ground of alternative remedy.

2. An order of preventive detention, though based on the subjective satisfaction of the detaining authority, is nonetheless a serious matter, affecting the life and liberty of the citizen Under Article 14, 19, 21 and 22 of the Constitution. The power being statutory in nature, its exercise has to be within the limitations of the statute, and must be exercised for the purpose the power is conferred. If the power is misused, or abused for collateral purposes, and is based on grounds beyond the statute, takes into consideration extraneous or irrelevant materials, it will stand vitiated as being in colourable exercise of power.

3. We are tempted to preface our judgment with the aforequoted observations of the Supreme Court in the case of V. Shantha vs. State of Telangana and Others, 2017 (14) SCC 577, because the State Government nor the detaining authorities are ready and willing to abide by or pay heed to the afore-quoted observations of the Supreme Court.

4. The facts giving rise to this Appeal may be summarized as under:

4.1 The appellant herein came to be preventively detained vide the detention order dated 29th July, 2020 passed by the respondent No. 2 herein, i.e. the District Magistrate, Kachchh-Bhuj as a “dangerous person” by virtue of the powers conferred under the Act, 1985. The appellant came before this Court challenging the legality and validity of the order of detention by filing the Special Civil Application No. 9868 of 2020.

4.2 It appears that the learned Single Judge declined to look into the legality and validity of the impugned order of detention on the ground that the appellant (Detenue) has already preferred a representation dated 6th August, 2020 addressed to the PASA Board and, in such circumstances, the appellant should wait for the outcome of his representation. In other words, the learned Single Judge declined to entertain the writ application on the ground that as the matter is under consideration before the Board, any order that may be passed by the High Court may come in conflict with the decision of the Advisory Board. It appears that the learned Single Judge also took the view that when an alternative efficacious remedy is available to the appellant, then the High Court should not entertain the writ application under Article 226 of the Constitution.

4.3 We quote the relevant observations made by the learned Single Judge in the impugned order:

“6. From the bare reading of the said provisions, it clearly transpires that in every case, where the detention order has been made under the Act the State Government within three weeks thereof has to place the same before the Advisory Board, the grounds on which the order has been made, and the representation, if any, made by the person affected by the order and where the order has been made by the Authorised Officer, also the report made by the officer, within three weeks from the date of order of detention. The procedure after the matter is referred to the Advisory Board has been prescribed in Section 12 of the said Act. The report that may be submitted by the PASA Board to the State Government within seven weeks from the date of detention is required to be kept confidential.

7. So far as the present case is concerned, the order impugned has been passed on 29