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2018 DIGILAW 1207 (GUJ)

Jignesh v. State of Gujarat

2018-10-22

A.J.SHASTRI

body2018
JUDGMENT : A.J. Shastri, J. 1. Rule. Mr. Bharat Vyas, learned A.G.P. waives service of rule on behalf of the respondent-State. With the consent of the parties, the matter is taken up for final hearing today. 2. The present petition under Art. 226 of the Constitution of India is filed for the purpose of seeking the following reliefs : "27(A) This Hon'ble Court may be pleased to admit this Special Civil Application. (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 quashing and setting aside the order of detention passed by the respondent No. 2 at the pre-execution stage. (C) This 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 the admission, hearing and final disposal of this petition and thus to stay further proceeding. (D) This Hon'ble Court may be pleased to direct the respondent No. 2 to produce the order of detention along with the grounds of detention before this Hon'ble Court for kind perusal of the same and for the adjudication of present petition in the interest of justice. (E) Grant such other and further reliefs as deemed just and proper by this Hon'ble Court in the interest of justice." 3. The facts leading to the petition are that the petitioner has been falsely arraigned in a criminal case which was registered before the Katargam Police Station, City of Surat under the provisions of Bombay Prohibition Act, registered as Prohibition C.R. No. III-356 of 2018 and the said offence was registered on 29-7-2018. It is the case of the petitioner that in past some two more offences of similar nature were registered against him, one in the year 2016 and another is of the year 2009 and those offences are narrated in Para 3 of the petition. It is the case of the petitioner that in past some two more offences of similar nature were registered against him, one in the year 2016 and another is of the year 2009 and those offences are narrated in Para 3 of the petition. It is further the case of the petitioner that the petitioner has been enlarged on regular bail, but is apprehending that the moment the petitioner is released on regular bail, with respect to recent offence he will be detained under the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 (P.A.S.A.) and at present the petitioner is in judicial custody in connection with the offence which has been registered, and therefore, upon such apprehension, the petitioner has invoked extraordinary jurisdiction of this Court. 4. The Court on 24-8-2018 has issued notice made it returnable on 10-9-2018, in which the authority has filed affidavit-in-reply and against which affidavit-in-rejoinder is also filed, and thereby, upon completion of the pleadings by both the sides, the matter was requested to be taken up for hearing. The Court as such on 11-10-2018 has heard the matter upon request of the learned Advocates appearing for the respective sides. 5. Mr. Pawan Barot, learned Advocate appearing for the petitioner has vehemently contended that the petitioner's activity cannot fall within the purview of the definition of the 'bootlegger' as defined under Sec. 2(b) of the Act. The petitioner has been arraigned in solitary offence, and therefore, there is no consistent activity of the petitioner which would fall the case of the petitioner within the definition. It has been contended that on the same date i.e. on 29-7-2018, the petitioner has been sent in judicial custody and then though regular bail has been granted on 16-8-2018, the petitioner is afraid of being detained under the P.A.S.A. Act, and has not been in a position to come out. As a result of this, learned Advocate Mr. Barot has submitted that the petitioner may be immediately protected. It has been contended that since the petitioner is in judicial custody, there is no question of taking preventive action against the petitioner as he is not in a position to commit any crime or continue the activity for which the petitioner is apprehending. Barot has submitted that the petitioner may be immediately protected. It has been contended that since the petitioner is in judicial custody, there is no question of taking preventive action against the petitioner as he is not in a position to commit any crime or continue the activity for which the petitioner is apprehending. It has been contended that the past offences if committed, cannot be relied upon, and therefore, also it is not open for the authority to initiate any action against the petitioner. It has been further contended that the petitioner is already in judicial custody, and therefore, in view of the law laid down by the Apex Court in the case of Abdul Razak Abdul Wahab Shaikh v. S.N. Sinha, Commissioner of Police, Ahmedabad, reported in AIR 1989 SC 2265 : [ 1989 (2) GLR 940 (SC)], there is no question of detaining the petitioner or to proceed ahead by taking steps under the detention law. It has further been contended that the affidavit-in-reply which has been filed is not filed by the detaining authority, but filed by the formal authority, which cannot be said to relevant and on the basis of such irrelevant facts, the Court may kindly ignore the same and grant urgent protection. It has further been contended that it is the settled position of law that pending investigation, the offences cannot be considered for the purpose of detaining the petitioner. On the contrary, the ordinary law has been set in motion in which the petitioner has been granted regular bail, and therefore, there is no question of taking steps against the petitioner under the detention law. 5.1. Learned Advocate Mr. Barot has further submitted that this preventive detention has aim and object to prevent from any further activity and so long as the petitioner is in custody, there is hardly any question of repeating the crime, and therefore, the petition may be accepted by granting the reliefs prayed for. Learned Advocate Mr. Barot has further relied upon the decision delivered by the Division Bench of this Court in the case of Dhanbai Jashabhai Miyana v. Commissioner of Police, Ahmedabad, reported in 1989 (1) GLR 584 , and has contended that since at present, also the proposal is pending, and no final order is passed, there is no question of taking prompt action of detention against the petitioner. Resultantly, the reliefs prayed for in the interest of justice may be granted. It is further submitted that this activity of the petitioner is not possible to be covered under the definition of 'bootlegger', as a result of this, the petitioner's activity are not falling within the purview of the Act, and therefore, there is no question of taking steps against the petitioner. Resultantly, the serious apprehension which has been voiced out may be taken care of by the Court by granting the relief. No other submissions have been made. 6. To deal with and counter the stand taken by the learned Advocate for the petitioner, learned A.G.P. Mr. Bharat Vyas appearing for the respondent-authority has vehemently contended that this petition is basically premature, since at present, merely proposal is pending and there is actually no order of detention is passed till date, and therefore, there is no question of pre-execution relief being considered. It has further been contended that at pre-execution stage, only disclosure of fact related to the petitioner can be revealed by the Police Inspector and the detaining authority may not be expected to file affidavit as proposal is still pending, not concluded in passing the order of detention, and therefore, the contention which has been raised about non-filing of the affidavit-in-reply by the detaining authority is devoid of merit. It has further been contended that the authority may not intercept at this stage of the proceedings where the proposal is under consideration and the authority may be allowed to take an independent decision against the petitioner in accordance with law. The petitioner cannot expect or presume that the statutory authority will act contrary to the object of the Act or contrary to the provisions under which the statutory powers are invested. Therefore, at this stage of the proceedings, no relief be granted. Additionally, learned A.G.P. Mr. Vyas has submitted that here is a case in which the petitioner has been arraigned in consistently three offences and on the contrary, in respect of the complaint being Prohibition C.R. No. III-356 of 2018, the petitioner has been red-handedly caught and arrested, and therefore, here is a case in which when the authority is considering the issue, no extraordinary jurisdiction be allowed to be exercised at the instance of the petitioner. Whether the case falls within the definition of the 'bootlegger' or the activity in which the petitioner is arraigned is sufficient to visit the detention order may be left to the authority to arrive at, and therefore, at this crucial stage no relief be granted as the petition is premature and by inviting attention of the observations made by the Full Bench, a contention is raised that the petition deserves to be dismissed. No other submissions have been made. 7. Having heard the learned Advocates appearing for the respective parties and having gone through the contents, this Court before coming to the conclusion is mindful of some of the issues propounded by the relevant decisions. The law is amply clear on this issue, which is observed by one of the decision of the Apex Court in the case of D.N. Jeevaraj v. Chief Secretary, Government of Karnataka, reported in 2016 (2) SCC 653 , more particularly, Paras 41 and 43: "41. This Court has repeatedly held that where discretion is required to be exercised by a statutory authority, it must be permitted to do so. It is not for the Courts to take over the discretion available to a statutory authority and render a decision. In the present case, the High Court has virtually taken over the function of B.D.A. by requiring it to take action against Sadananda Gowda and Jeevaraj. Clause 10 of the lease-cum-sale agreement gives discretion to B.D.A. to take action against the lessee in the event of a default in payment of rent or committing breach of the conditions of the lease-cum-sale agreement or the provisions of law. This will, of course, require a notice being given to the alleged defaulter followed by a hearing and then a decision in the matter. By taking over the functions of B.D.A. in this regard, the High Court has given a complete go-by to the procedural requirements and has mandated a particular course of action to be taken by B.D.A. It is quite possible that if B.D.A. is allowed to exercise its discretion it may not necessarily direct forfeiture of the lease but that was sought to be pre-empted by the direction given by the High Court which, in our opinion, acted beyond its jurisdiction in this regard. 43. 43. To this, we may add that if a Court is of the opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure, it must give its reasons for coming to that conclusion. The reasons given by the Court for disabling the statutory authority from taking a decision can always be tested and if the reasons are found to be inadequate, the decision of the Court to by-pass the statutory authority can always be set aside. If the reasons are cogent, then in an exceptional case, the Court may take a decision without leaving it to the statutory authority to do so. However, we must caution that if the Court were to take over the decision taking power of the statutory authority, it must only be in exceptional circumstances and not as a routine. Insofar as the present case is concerned, the High Court has not given any reason why it virtually took over the decision taking function of the authorities and for this reason alone the mandamus issued by the High Court deserves to be set aside, apart from the merits of the case which we have already adverted to." 7.1. Considering the aforesaid situation, the Court is of the opinion that so long as the authority has not determined the steps against the petitioner, this Court should not dwell upon the functions of the statutory authority which is exclusively assigned with the duty to take steps in consonance with the object in which powers are entrusted. The authority deserves to be allowed to take free and independent decision without being intercepted by the Court. Hence, at this stage of the proceedings, the Court is of the view that the petition does not deserves to be entertained. 7.2. Yet another circumstance which is kept in mind by the Court that no doubt, it is possible to be said by the petitioner that the petition at the pre-execution stage is maintainable, but then, the Full Bench of this Court has categorically observed that the said powers to be exercised sparingly and not in a routine manner. 7.2. Yet another circumstance which is kept in mind by the Court that no doubt, it is possible to be said by the petitioner that the petition at the pre-execution stage is maintainable, but then, the Full Bench of this Court has categorically observed that the said powers to be exercised sparingly and not in a routine manner. It has been observed by the Full Bench of this Court in the case of Vijaysingh @ Gatti Pruthivisinh Rathod v. State of Gujarat, reported in 2015 (2) GLH 132 (FB) : [ 2015 (1) GLR 703 (FB)] in Para 18, after analyzing the issue, has observed like this which has been kept by the Court in mind and since relevant, quoted hereinafter: "18. Hence, the reference can be answered as under: (3) The High Court while exercising the power under Art. 226 of the Constitution of India in a petition for challenging the order of detention at the pre-execution stage may bear in mind the observations made by the Apex Court in the case of State of Maharashtra v. Bhaurao Punjabrao Gawande, AIR 2008 SC 1705 , at Paragraph 63, relevant of which reads as under: '63.......As a general rule, an order of detention passed by a Detaining Authority under the relevant 'preventive detention' law cannot be set aside by a Writ Court at the pre-execution or pre-arrest stage unless the Court is satisfied that there are exceptional circumstances specified in Alka Subhash Gadia. The Court must be conscious and mindful of the fact that this is a 'suspicious jurisdiction' i.e. jurisdiction based on suspicion and an action is taken 'with a view to preventing' a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a Court of Law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a Writ Court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order'." 7.3. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order'." 7.3. The Court has also assistance to yet another decision delivered by the Division Bench of this Court decided on 8-10-2018 in Letters Patent Appeal No. 1281 of 2018 in which when the order of detention is not passed under the provisions of P.A.S.A. Act, the petition normally cannot be entertained and the relevant observations contained in Para 4 since considered by the Court, reproduced hereinafter: "4. During the course of hearing, learned Counsel appearing for the appellant has fairly admitted that there is no order of detention under the provisions of P.A.S.A. Act of 1985. If no such order of detention is passed, we fail to understand how such a petition, seeking the relief as sought for, could have been filed. While it is open for the appellant to file such a petition, when the order of detention is passed, if there is any ground available to challenge the same before the same is executed, but at the same time, if order of detention is not passed under the provisions of P.A.S.A. Act, no such petition can be maintained seeking the relief as sought for." 7.4. In the context of the aforesaid proposition of law which has been laid down, the Court while examining the present record found that at present a categorical stand is taken by the authority that no order of detention is passed and the proposal is pending. Therefore, in view of this, this Court is of the considered opinion that when the statutory authority is examining the issue, the Court would not like to intercept from such exercise for which the statute has invested power in it and the Court is not inclined to infer that the authority will take incorrect decision or will not keep the object in mind. On the contrary, the Court is of the clear opinion that the authority should be allowed to freely exercise its statutory functions without any fear or fear of pressure of this Court in any form. As a result of this, at this stage of proceedings, the Court would not like to interfere. 7.5. On the contrary, the Court is of the clear opinion that the authority should be allowed to freely exercise its statutory functions without any fear or fear of pressure of this Court in any form. As a result of this, at this stage of proceedings, the Court would not like to interfere. 7.5. Yet another circumstance which is kept in mind is that whether the activity of the petitioner falls within the definition of the 'bootlegger' as defined under Sec. 2(b) of the Act, is premature to be determined or opined by the Court. On the contrary, the Court would not like to opine anything on the merit of the case especially when the proposal is under examination by the authority. Resultantly, the petition does not deserves to be entertained. 7.6. Yet another circumstance, which is not possible to be ignored is that the narration of the F.I.R. and the averments contained therein, which prima facie reflects systematic activity of the petitioner, and therefore, it is for the statutory authority to deal with such kind of activity in the manner in which its conscious is satisfied either to pass the order of detention or not is a domain of the authority, which Court, at this stage, would not like to intercept or usurp. Resultantly, the petition does not deserve to be entertained. The Court while exercising extra-ordinary jurisdiction has to examine the decision-making process whether it was just and proper or not while passing the order and when yet the authority has not passed any order of detention, the Court would not like to presume, even if the apprehension of the petitioner is reflecting, then also such apprehension cannot be taken care of by the Court at this stage while intercepting the process of statutory authority. With a view to drag the Court, the affidavit-in-rejoinder has been filed bulky then the petition by dumping several authorities, but these authorities will be considered at appropriate stage and not at the stage where yet no decision is arrived at by the authority and, therefore at pre-execution stage, no relief can be granted in peculiar background of this case. Since, the Court is not entertaining the petition on account of the peculiar facts and the stage of petitioner's detailed examination on the merit is not concluded and opined which may influenced the authority while taking the ultimate decision against the petitioner. Since, the Court is not entertaining the petition on account of the peculiar facts and the stage of petitioner's detailed examination on the merit is not concluded and opined which may influenced the authority while taking the ultimate decision against the petitioner. Therefore, this being the position prevailing on record, the petition being devoid of merit deserves to be dismissed. 8. So far as the decisions which have been relied upon are of stages where the detention order has already been passed and the Court was called upon to examine its validity. At present, there is no material available upon which any conclusion can be derived. This proposition of law which has been laid down in the case of Abdul Razak Abdul Wahab Shaikh (supra) the background of the fact is altogether different and it is settled position of law that a slight change in the fact would make a world of difference in applying precedent. Therefore, with respectful consideration of such authorities, the Court is of the view that the same cannot be taken in aid by the petitioner, Further, the Division Bench of this Court has also arrived at a conclusion in which also, a specific order of detention is passed, and therefore, those principles can be applied when the authority will decide and pass the order and conclude the steps against the petitioner. This is absolutely at premature stage and considering the aforesaid law laid down by the various decisions referred to hereinabove, the Court would not like to exercise extraordinary jurisdiction which is equitable in nature. Hence, without much describing the activity of the petitioner, without much dwelling into it, the authority is permitted to exercise statutory power to arrive at a conclusion in respect of the activity of the petitioner, and it is expected that the statutory authority will properly decide in accordance with law. Hence, the petition is dismissed. Notice is discharged. No order as to costs.