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2020 Supreme(Guj) 707
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Bhargav D. Karia, J.
Shaikh Niyaz Anwarbhai – Petitioner
Versus
State Of Gujarat – Respondent
R/Special Civil Application No. 10427 of 2020
Decided On : 02-09-2020
Advocate Appeared:
For the Petitioner: Mr. M R Qureshi
For the Respondent: Ms Vrunda Shah, AGP
IMPORTANT POINT
Principles of stare decisis to follow the dicta laid down by the larger Bench, we hold that the detention order at pre-execution stage can be challenged only on the five grounds mentioned in Alka Gadia (supra) or other contingencies of the same species.
Headnote:
Criminal Law – Criminal Trial - Gujarat Prevention of Anti Social Activities Act, 1985 - Order of detention - Challenged - Pre-execution stage - It is only in these five types of instances that the court may exercise its discretionary jurisdiction under Article 226 or Article 32 at pre-execution stage. The petitioner had sought to contend that the order which was passed was vague, extraneous and on irrelevant grounds but there is no material for making such an averment for the simple reason that the order of detention and the grounds on which the said order is passed has not been placed on record inasmuch as the order has not yet been executed. The petitioner does not have a copy of the same and therefore it is not open to the petitioner to contend that the nonexistent order was passed on vague, extraneous or on irrelevant grounds.
Facts of the case
Petition is filed on the basis of apprehension that whenever there is offence registered under provisions of Gujarat Animal Preservation Act, respondent authorities are passing the order of detention under Act, 1985.
Findings of the court
When order and the grounds are served and detenu is in a position to make out prima facie limited grounds on which they can be successfully challenged, courts, as pointed out earlier, have power even to grant bail to detenu pending the final hearing of his petition - Alternatively, as stated earlier, Court can and does hear such petition expeditiously to give the necessary relief to the detenu – If appellant surrenders and allows the order of detention to be executed, then, it shall be open for the appellant to challenge the same by filing an appropriate writ application, on all available grounds in law.
Result: Appeal dismissed.
ORDER :
1. Heard learned advocate Mr. Abid Qureshi appearing on behalf of learned advocate Mr. M.R. Qureshi for the petitioner and learned Assistant Government Pleader Ms. Vrunda C. Shah for the respondent – State through video conference.
2. Learned advocate Mr. Qureshi states that this petition is filed on the basis of apprehension that whenever there is offence registered under the provisions of Gujarat Animal Preservation Act, the respondent authorities are passing the order of detention under the Gujarat Prevention of Anti Social Activities Act, 1985 (“PASA Act” for short) against the petitioner.
3. In view of the decision of this Court in case of Mukeshbhai Versibhai Desai v. State of Gujarat in Letters Patent Appeal No.108/2020, the apprehension shown by the learned advocate for the petitioner is not tenable in law. Division Bench of this Court has held in the said decision as under :
“24. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the learned Single Judge committed any error in passing the impugned judgment and order.
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 India in the case of Additional Secretary to the Government of India Vs. Smt. Alka Subhash Gadia & Anr.”, (Supra).
26 It is not in dispute that the Supreme Court in categorical terms delineated the parameters on which order of detention at pre-execution stage can be questioned in the case of Alka Subhash Gadia and Another (supra). In that case an order of detention was passed against the husband of the respondent No.1 under Section 3(1) of COFEPOSA. The order, however, could not be served on him as he was absconding. Hence a declaration was made that he fell within the category mentioned in Section 2(b) of the SAFEMA. Thereafter, a notice was issued under Section 6(1) of the SAFEMA to show cause as to why the properties mentioned in the schedule to the said notice should not be forfeited to the Central Government for reasons recorded in the accompaniment. A copy of the notice along with the schedule of the properties and the copy of the reasons for forfeiture of property were also sent to the respondent No.1. The Respondent No.1, thereafter, filed a writ petition under Article 226 before the High Court challenging the detention order as well as the show cause notice. The High Court by its impugned decision held that the writ petition was maintainable for challenging the detention order even though the detenu was not served with the order and he had thus not surrendered to the authorities. The High Court further directed that the detention order, the grounds of detention, and the documents relied upon for passing the detention order be furnished to the detenu and that they should also be produced before the court. The High Court also directed the authorities to supply the said documents to the counsel for the respondent No.1. The Assistant Director of Enforcement filed an affidavit before the High Court stating that although they
