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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
G.R. Udhwani, J.
Dilipbhai Bharatbhai Dhadhal – Petitioner
Versus
State Of Gujarat – Respondent
R/Special Civil Application No. 19009, 18834, 19010 of 2019
Decided On : 01-09-2020
Criminal Law - PASA Act – Constitution of India, 1950 - Article 21 - Seeking to quash and set aside the order of detention - Pre-execution stage - Whether petitions could be entertained in absence of the order of detention came up before this court in number of cases wherein following order was passed – This court as back as on 27.01.2015 apprising the detaining authority the law as to preventive detention and the manner of exercise of its power and their duty to preserve the liberty of the individual while coming heavily upon the real culprits
Facts of the Case: Prayer clause (B) itself and the averments made in the petition that the petitioner is unable to affirm the existence of the order of detention and that is why the word “detention” is suffixed by “if any” - The question therefore in this petition is whether the petition where the order of detention is not in the knowledge of the petitioner can be entertained on the wide perspective that, in absence of entertaining the petition, the right of the petitioner under Article 21 of the Constitution of India would be at stake.
Findings of the Court: The grant of approval to the order of detention in accordance with subsection (3) of Section 3 is not an empty formality. The Government must examine whether the order is lawful and when called upon by the Court of law to show its application of mind, there should be something on record for the same. I am informed by the learned AGP that in the year 2014, almost three thousand and odd orders of detention were passed, out of which almost in 50% cases, it was recommended by the Advisory Board constituted under the Act to revoke the order
Result: Petitions dismissed.
JUDGMENT :
1. The following reliefs have been prayed for in these petitions:
Special Civil Application No. 19009 of 2019.
“31(A) xxxxx
(B) This Hon'ble Court may be pleased to allow this Special Civil Application by issuing a writ of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside at a pre-execution stage the order of detention if any passed by Respondent No.2 under the provisions of the PASA Act on basis of the solitary offence registered with Savarkundla Rural Police Station Amreli I-C.R. No. 36 of 2016 at Annexure-A.
(C) This Hon'ble Court may be pleased to direct respondents, and/or their agents, servants, persons, employees etc. for not executing the order of detention till the admission, hearing and final disposal of this petition and thus to stay further proceedings.
(D) This Hon'ble Court may be pleased to direct the respondents to produce the order of detention alongwith the grounds of detention before this Hon'ble Court for kind perusal of the same.
(E) xxxx
Special Civil Application No. 19010 of 2019.
“31(A) xxxxx
(B) This Hon'ble Court may be pleased to allow this Special Civil Application by issuing a writ of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside at a pre-execution stage the order of detention if any passed by Respondent No.2 under the provisions of the PASA Act on basis of the solitary offence registered with Savarkundla Rural Police Station Amreli I- C.R. No. 36 of 2016 at Annexure-A.
(CI) This Hon'ble Court may be pleased to direct respondents, and/or their agents, servants, persons, employees etc. for not executing the order of detention till the admission, hearing and final disposal of this petition and thus to stay further proceedings.
(D) This Hon'ble Court may be pleased to direct the respondents to produce the order of detention alongwith the grounds of detention before this Hon'ble Court for kind perusal of the same.
(E) xxxx
Special Civil Application No. 18834 of 2019:
“31(A) xxxxx
(B) This Hon'ble Court may be pleased to allow this Special Civil Application by issuing a writ of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside at a pre-execution stage the order of detention if any passed by Respondent No.2 under the provisions of the PASA Act on basis of the two offences registered with Savarkundla Rural Police Station, Amreli, at Annexure-A and Annexure-B.
(C) This Hon'ble Court may be pleased to direct respondents, and/or their agents, servants, persons, employees etc. for not executing the order of detention till the admission, hearing and final disposal of this petition and thus to stay further proceedings.
(D) This Hon'ble Court may be pleased to direct the respondents to produce the order of detention alongwith the grounds of detention before this Hon'ble Court for kind perusal of the same.
(E) xxxx
2. It can be noticed from the prayer clause (B) itself and the averments made in the petition that the petitioner is unable to affirm the existence of the order of detention and that is why the word “detention” is suffixed by “if any”. The question therefore in this petition is whether the petition where the order of detention is not in the knowledge of the petitioner can be entertained on the wide perspective that, in absence of entertaining the petition, the right of the petitioner under Article 21 of the Constitution of India would be at stake.
3. In SCA No. 18834 of 2019 the apprehension of the petitioner being detained is rested on two FIRs principally attributing to the petitioner for the offences under IPC whereas in other two cases the apprehension is based on solitary FIR in each case.
4. The question whether the petitions could be entertained in absence of the order of detention came up before this court in number of cases wherein following order was passed.
“The petition has been instituted at the stage where the order of detention has not been passed at all.
I
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