Pre-execution challenges to detention orders under preventive detention laws are limited to exceptional cases where the order is prima facie illegal or issued without authority.

JUDGMENT :

Samir J. Dave, J.

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

“(a) This Hon’ble Court may be pleased to admit and allow the present petition;

(b) This Hon’ble Court be pleased to issue a writ of mandamus or a writ in the name of mandamus or any other appropriate writ, order or direction quashing and setting aside at pre execution stage the order of detention passed by respondent no.1 under PASA mentioned hereinabove, as being illegal invalid null and void, arbitrarily and suffering from non application of mind, without jurisdiction and illegal, suffering from malafides and violative of Articles 21, 22 and 226 of the Constitution of India;

(c) Pending admission hearing and final disposal of this petition, this Hon’ble Court may be pleased to restrain the respondents and/or their agents, servants, persons, employees etc. from executing the order of detention upon the petitioner or from detaining the petitioner in any manner under PASA, in the interest of justice;

(d) xxx.. xxx… xxx;”

2. The challenge is to the order of detention at pre-execution stage that the respondent No.7– detaining authority viz. the District Magistrate, Amreli, in exercise of powers conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short “the Act”) will detain the petitioner – detenue as ‘dangerous person’.

3. Learned counsel for the petitioner has argued that father of the petitioner namely Devshibhai Vadher who is also co- accused in three of the FIRs out of four FIRs and he is already detained as ‘dangerous person’ under the provisions of PASA vide order dated 24.04.2024 and therefore, there are all chances and the petitioner is under tremendous fear that he would also be detained under PASA as ‘dangerous person’ and thus, this Hon’ble Court may kindly protect the petitioner against his detention.

4. Learned Counsel has submitted that there was no material available with the detaining authority to jump to a conclusion that there is likelihood of the petitioner being arrested and being released on bail and may continue his illegal activities in further and therefore, it is necessary to prevent him from continuing illegal activities. If there is no cogent material before the detaining authority for drawing inference to such conclusion, then on the face of it, the action of the respondent to pass a detention order is unsustainable in the eye of law.

5. Learned Counsel for the petitioner relied upon the decision of the Hon’ble Apex Court in case of Deepak Bajaj Vs. State of Maharashtra and Anr., reported in (2008) 16 SCC 14.

6. As against that, learned APP has opposed the grant of petition by submitting that the detaining authority has referred to likelihood of petitioner indulging in the similar activities on the basis of offences registered against the petitioner. He also submitted that looking to the history of the criminal offence of the petitioner, no liberty can be granted in favour of the present petitioner and therefore, present petition may be rejected.

7. 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 grounds is a ground which are in fact challenging the order of detention which has not been passed yet. The grounds mentioned are resorting to the lesser drastic remedy, no material of petitioner indulging in offense in future involving in future offense after being released on bail.

8. It would be pertinent to observe that the petitioner already has a history of similar offense. These details in tabular form are as under:-