Pre-execution challenges to detention orders are permissible only in exceptional cases, emphasizing the need for surrender before contesting such orders.

JUDGMENT :

SAMIR J. DAVE, J.

1. This petition under Article 226 of the Constitution of India is filed for the following reliefs:

“(a) That the Hon’ble Court may be pleased to admit this Special Civil Application;

(b) That this Hon’ble Court may be pleased to allow this present Special Civil application by issuing appropriate writ of mandamus or any other appropriate writ, order or direction quashing and set aside the order of detention passed by the respondent no.2 at pre-execution stage;

(c) The Hon’ble Court may be pleased to direct respondents, and/or their agents, servants, persons, employees etc. not to execute the order of detention till admission, hearing and final disposal of this petition and thus to stay further proceedings.

(d) The Hon’ble Court may be pleased to direct the respondent no.2 to produce the order of detention alongwith the grounds of detention before this Hon’ble Court for kind perusal of the same and for adjudication of present petition in the interest of justice;

(e) xxx.. xxx… xxx;”

2. The challenge is to the order of detention at pre-execution stage that the respondent No.2– detaining authority viz. the District Magistrate, Porbandar, in exercise of powers under the provisions of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (for short “ the Act”) and will detain the petitioner .

3. Learned Senior counsel for the petitioner has argued that the present applicant is alleged to have obtained sub- contact from co-accused Hathiya Dudabhai Khunti regarding DSD by way of contract/ mutual agreement for labour work and the present applicant is alleged to have been supplied the government food grains to co-accused Hasmukh Dadhi and Paras Sachdev as per instructions “Ashwin Bhoy” (Godown Manager). The investigation officer has not supplied/ collected any documents regarding direct or indirect involvement of the applicant. The applicant was falsely implicated in present offence just because he was supplier’s father and son applicant was supplied those goods as per information/ instructions of Godown Manager (accused no.2). It is admitted fact that the son of the present applicant is required to follow order and instructions of accused no.1 and 4 because designation of applicant is only transporter and he has to transport goods as per the direction .

4. Learned Senior Counsel for the petitioner relied upon the decision of the Hon’ble Apex Court in case of Nenavath Bujji Etc. Vs. The State of Telangana and Ors., passed in Criminal Appeal Nos.1739 to 1739 of 2024 and also relied upon another decision of the Hon’ble Apex Court in the case of Deepak Bajaj Vs. State of Maharashtra and Anr., reported in (2008) 16 SCC 14.

5. As against that, learned AGP has opposed the grant of petition by submitting that perusing the FIR registered with Ranavav Police Station, Porbandar. The offence has been committed from the year 2020-2021 up to date 04.01.2023, the petitioner herein had illegally got into sub-contracts with the other co-accused of the impugned FIR with the motive of deceive and defraud the government as well as to misappropriate food grains designated for distribution to individuals living below the poverty line under various government schemes. It is also submitted that the investigator founds that the contract of the laborers was sub-contracted to the petitioner and the payment of the said laborers was also transferred from the account of sub-contractor by the way of NEFT, which is a clear transpires the illegality of the contract. Hence, as per the settled legal position of law, the petitioner is required to surrender first before challenging the order of detention, which is not even served upon him and not executed by the authority and therefore, present petition may be rejected.

6. The Court may refer to the elaborate pleading made in the petition especially the grounds to challenge the anticipated detention. The perusal of the grounds makes it clear that each of the ground