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2019 DIGILAW 835 (GUJ)

Mohmeddanis Anwarahmed Rajput v. State of Gujarat

2019-10-03

A.J.SHASTRI, VIKRAM NATH

body2019
ORDER : VIKRAM NATH, J. 1. The present appeal under Clause 15 of the Letters Patent is filed against the decision of the learned Single Judge dated 09.09.2019 being Special Civil Application No. 7273 of 2019. 2. The case of appellant - proposed detenu is that apprehending the detention in connection with one complaint lodged being C.R. No. 5053 of 2019 for the offences punishable under Sections 66(B), 65(a)(e), 116(B) and 81 of the Prohibition Act on 15.03.2019, wherein, the appellant was shown as an absconding accused. The said complaint was filed by one Mr. P.B. Chavda, P.S.I., before the Rakhiyal Police Station, Ahmedabad. The assertion in the complaint is that pursuant to the information having received by the complainant, the police rushed to the spot and arrested the main accused Mohmed Sohil @ Sonu Mohmed Salim Shaikh with 180 Bottles of English Liquor to the tune of Rs. 81,750/-, in which, the said accused has given a specific name of the present appellant. The appellant pursuant to such apprehension applied for Anticipatory Bail before this Court, which came to be granted, according to the appellant, on 29.03.2019. But then, since Mohmed Sohil @ Sonu Mohmed Salim Shaikh was detained under Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as the "PASA") by virtue of order passed by the Police Commissioner, Ahmedabad City and there was a clear apprehension from the part of appellant which led him to file Special Civil Application No. 7273 of 2019 at pre-execution stage. Relying upon the decisions delivered by the Apex Court, which are referred to in the memo of appeal, the petition was presented, which was entertained by this Court and later on when come up for consideration on 09.09.2019, learned Single Judge was pleased to dismiss the petition by vacating interim relief as alleged activity of appellant was found to be not in the interest of public at large. Against this order dated 09.09.2019, appellant has preferred present Letters Patent Appeal. 3. When the matter is taken up for hearing, learned advocate Mr. Valimohammed Pathan appearing for the appellant has contended that on account of alleged activity neither there is any violation of public order nor any prejudicial impact is reflecting and as such for a single offence, no order of detention could be passed. 3. When the matter is taken up for hearing, learned advocate Mr. Valimohammed Pathan appearing for the appellant has contended that on account of alleged activity neither there is any violation of public order nor any prejudicial impact is reflecting and as such for a single offence, no order of detention could be passed. It has further been submitted by learned advocate for the appellant that the learned Single Judge ought to have appreciated the fact that in large number of cases whenever there is any detention is to be effected on account of any solitary offence, such orders are not allowed to be operated and here is a case, in which, the learned Single Judge initially on 24.04.2019 taking note of this situation was pleased to entertain the petition at a pre-execution stage, since the order of detention was already passed on 09.04.2019. Resultantly, since the activity of the appellant is not falling within the parameters of the definition contained under the Act, namely PASA, the learned Single Judge ought not to have dismissed the petition. 4. To meet with the said circumstances, learned Assistant Government Pleader Ms. Aishwarya Gupta appearing for the respondent - State has vehemently contended that here is a case, in which, this solitary offence is not to be viewed leniently because it was not a case for personal consumption, but there are as many as 180 bottles of English Liquor which are found and that the name of appellant was specifically informed to the authorities by the person who was detained and as such at this stage to prevent the order from being executed, the same would not be in the interest of justice, on the contrary, would defeat the very object of enactment of PASA. It has been submitted that the learned Single Judge clearly mentioned in his order dated 09.09.2019 that involvement of the appellant in transportation, storage and supply of huge quantity of liquor emerges from the record and such activity was found to be prohibited under the provisions of the Act and if permitted to be carried out, the same would result into breach of public order and the consumption of such liquor will also affect the health and hygiene of the public at large. So, after having satisfied about the role and conduct of the appellant, the learned Single Judge has disposed of the petition and this is after granting full opportunity of hearing to the appellant as well as to the learned Assistant Government Pleader representing in the petition and only thereafter, the detaining authorities were permitted to execute the order of detention. 4.1. Learned Assistant Government Pleader Ms. Aishwarya Gupta has further submitted that there is a specific remedy available after the execution of order of detention. So the appellant is not remedy less and he can ventilate his grievance and raise all contentions which may be available to him in accordance with law. As a result of this, learned Assistant Government Pleader Ms. Gupta has requested the Court to dismiss the present Letters Patent Appeal. 5. Having heard learned advocates appearing for the respective parties and having gone through the material on record and the contents of First Information Report, we are satisfied with a fact that the reasons assigned by the learned Single Judge while dismissing the petition are justified in the eye of law and we are in complete agreement with the same. On the contrary, looking to the assertion in the complaint, it appears that the findings of the learned Single Judge regarding involvement of appellant in transportation, storage and supply of huge quantity of liquor cannot be ruled out and the observation was also not out of place contained in the impugned order that this consumption of liquor will also affect health and hygiene of public at large, would disturb the public order and as such keeping in view the law laid down by the Full Bench of this Court which prescribes that generally at a pre- execution stage, no interference be made and taking aid of such decision delivered by Full Bench of this Court dated 03.12.2014 in case of group of appeals headed by Special Civil Application No. 5664 of 2014, no case is made out by the appellant. There is no blanket proposition that no order of detention can be passed on account of any single offence being registered, when that be so, the stand taken by learned advocate for the appellant is not acceptable. 6. There is no blanket proposition that no order of detention can be passed on account of any single offence being registered, when that be so, the stand taken by learned advocate for the appellant is not acceptable. 6. Additionally, we are also of the opinion that if the powers are to be exercised by the statutory authority then authority must be given a free hand to exercise the powers and the Court normally should not usurp the discretion of authority. Such proposition is laid down by the Apex Court in a decision, which is in the case of D.N. Jeevaraj versus Chief Secretary, Government of Karnataka and others reported in (2016) 2 SCC 653 . The relevant observations contained therein are reproduced hereinafter:- 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 the BDA by requiring it to take action against Sadananda Gowda and Jeevaraj. Clause 10 of the lease-cum-sale agreement gives discretion to the BDA 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 the BDA in this regard, the High Court has given a complete go-bye to the procedural requirements and has mandated a particular course of action to be taken by the BDA. It is quite possible that if the BDA 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. 42. In Mansukhlal Vithaldas Chauhan v. State of Gujarat this Court held that it is primarily the responsibility and duty of a statutory authority to take a decision and it should be enabled to exercise its discretion independently. 42. In Mansukhlal Vithaldas Chauhan v. State of Gujarat this Court held that it is primarily the responsibility and duty of a statutory authority to take a decision and it should be enabled to exercise its discretion independently. If the authority does not exercise its mind independently, the decision taken by the statutory authority can be quashed and a direction given to take an independent decision. It was said: "Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words "shall" or "must". But this is not conclusive as "shall" and "must" have, sometimes, been interpreted as "may". What is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the scheme of the statute in which the "duty" has been set out. Even if the "duty" is not set out clearly and specifically in the statute, it may be implied as correlative to a "right". In the performance of this duty, if the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion." 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. 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. The circumstances and the parameters, which are prescribed by the Apex Court in case of Smt. Alka Subhash Gadia and other decisions, the appellant has failed to establish his case falling within such criteria. Hence, in the absence of any satisfaction that case of the appellant falls within the parameters prescribed by the aforesaid decision, we deem it proper not to entertain the petition at pre-execution stage. However, we make it clear that we have not expressed any opinion with regard to contentions raised relating to his actual order of detention and we keep it open for appropriate authorities to deal with and decide the same when the appellant challenge the order of detention. Accordingly, no case is made out to call for any interference. Resultantly, present Letters Patent Appeal stands dismissed.