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2020 DIGILAW 46 (GUJ)

Mukeshbhai Versibhai Desai v. State of Gujarat

2020-01-09

UMESH TRIVEDI

body2020
JUDGMENT : Umesh Trivedi, J. 1. By way of this petition under Article 226 of the Constitution of India, the petitioner seeks writ of mandamus of this Court to hold and declare that the respondents have no power, authority or competence to pass an order of preventive detention against the petitioner, in view of the facts set out in the memo of petition. 2. The petitioner, though seeks declaration that the respondents have no power, authority or competence to pass an order of preventive detention against him, has not placed order of detention on record of this case. Still however, in paragraph-3 of the petition, it is stated that the petitioner begs to challenge legality, validity and propriety of action of the respondent No. 2 of issuing order of preventive detention of the petitioner purported to have been recorded in exercise of powers under Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as "the Act") on the premise that the preventive detention of the petitioner is essential, since activities of the petitioner are such that it is prejudicial to the maintenance of the public order. The prayer and averments made in the petition primarily appear to be incongruous. The averments reflect that such an order of preventive detention is passed against the petitioner without producing the same before the Court. Whereas, prayer made in the petition seeks declaration that the respondents-authorities have no power, authority or competence to pass an order of preventive detention. In short, the petitioner is not sure about passing of the order of preventive detention and he seeks to challenge the same before it is executed upon him. 3. Mr. B.M. Mangukiya, learned advocate for the petitioner, vehemently submitted that the cases filed against him pertain to private disputes where Civil Suits are pending and the petitioner has been released on bail in those cases. It is further submitted that the petitioner had preferred Special Civil Application No. 8568 of 2015, which also came to be disposed of as having become infructuous on a statement made by the learned AGP that there is no proposal pending against the petitioner to preventively detain him. It is further submitted that the petitioner had preferred Special Civil Application No. 8568 of 2015, which also came to be disposed of as having become infructuous on a statement made by the learned AGP that there is no proposal pending against the petitioner to preventively detain him. It is further submitted that the petitioner had also preferred similar petition being Special Civil Application No. 16706 of 2016 apprehending his preventive detention order wherein, on a communication addressed to the Office of Government Pleader that neither any proposal is received nor any detention order is passed against the petitioner, the said petition came to be withdrawn on 14.11.2016. It is further submitted that similarly in the year 2018, a petition being Special Civil Application No. 89 of 2018 came to be filed again apprehending his preventive detention order where also there was a communication from the concerned Police Station, four in number, suggesting that in four different Police Stations of Ahmedabad City as also Ahmedabad Rural, there is no proposal to preventively detain him. Hence, again the said petition came to be withdrawn on 24.1.2018. Mr. B.M. Mangukiya, learned advocate further submitted that everyday police is visiting the house of the petitioner and therefore, there is an apprehension that he may be preventively detained. Thus, it is submitted that apprehension being genuine, this petition filed at pre-execution stage be entertained. 4. Mr. B.M. Mangukiya, learned advocate for the petitioner taking this Court to definition of "dangerous person" under Section 2(c) of the Act, submitted that a person must commit, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under chapter V of the Arms Act 1959. He has submitted that the offences alleged against the petitioner are offences relating to documents and to property marks, though some offences alleged may fall within Chapter XVI or Chapter XVII of the Indian Penal Code, the petitioner cannot be said to be habitually committing those offences to brand him as a dangerous person. He has submitted that the offences alleged against the petitioner are offences relating to documents and to property marks, though some offences alleged may fall within Chapter XVI or Chapter XVII of the Indian Penal Code, the petitioner cannot be said to be habitually committing those offences to brand him as a dangerous person. He has also referred to the definition of "property grabber" as defined under Section 2(h) of the Act and submitted that to brand him as property grabber, he must be alleged to have taken possession of any land not belonging to himself but belonging to Government, local authority or any other person or enters into or creates illegal tenancies or leave and licence agreements etc. He has further submitted that the allegation levelled in the impugned FIR against the petitioner, pertains to only land held and possessed by private individual and it is pure and simple civil dispute in between them. 5. Mr. Mangukiya, learned advocate for the petitioner has referred to the decisions in the case of Additional Secretary to the Government of India and others Versus Smt. Alka Subhash Gadia and Another reported in 1992 supp (1) Supreme Court Cases 496, in the case of Deepak Bajaj Vs. State of Maharashtra & Anr. reported in AIR 2009 SC 628 , in the case of Subhash Popatlal Dave Versus Union of India and Another reported in AIR 2012 SC 3370 : ( 2014 (1) SCC 280 ), and vehemently submitted that 5 exceptions laid down in Alka Subhash Gadia (Supra) are not exhaustive but illustrative, determining petition challenging the order of detention at pre-execution stage maintainable. Therefore, he has submitted that it is not only on those 5 exceptions mentioned in the Alka Subhash Gadia (Supra) but on other grounds also it can be entertained at pre-execution stage as held by the Hon'ble Supreme Court in the above referred cases. Relying on the decision of the Hon'ble Supreme Court in the case of S.R. Bommai and Ors. Versus Union of India and Ors. reported in (1994) 3 SCC 1 , in the case of Romesh Thappar Versus The State of Madras reported in AIR 1950 SC 124 , it is sought to be contended that powers of preventive detention cannot be exercised by the authority on non-existence material. Versus Union of India and Ors. reported in (1994) 3 SCC 1 , in the case of Romesh Thappar Versus The State of Madras reported in AIR 1950 SC 124 , it is sought to be contended that powers of preventive detention cannot be exercised by the authority on non-existence material. The discretion of the Court under Article 226 of the Constitution of India for entertaining a petition has to be on sound principles of law. If the action of the authority is arbitrary, the Court has to exercise the power of judicial review. It is further submitted that number of cases filed against the petitioner is not the criteria for exercise of jurisdiction under the preventive detention law. He has further submitted that out of 19 cases registered against him, almost all relate to property dispute where Suits are also filed. Not only that, he further submitted 5 of them have been quashed by this Court in different proceedings. He has further submitted that vide order dated 06.01.2014 passed in Special Civil Application No. 15975 of 2013, this Court had quashed and set aside the preventive detention order dated 16.08.2013. Thereafter also, when at pre-execution stage petitions were filed, the respondents authorities had come out with an instructions that there is no proposal to preventively detain the petitioner, as contended by him recorded in earlier part of the judgment. In short, he has submitted that mere number of cases registered against the detenue is not the criteria to pass an order of detention against a person. He has further submitted that the criminal history of a person is no ground to preventively detain him. It is further submitted that FIRs referred to in the petition, 19 in numbers except 2, do not refer to even disturbing law and order situation. Almost all cases are relating to property dispute. Hence, it is submitted that there is no breach of public order and therefore, no preventive detention order can be passed against the petitioner and if it is passed against the petitioner, it is required to be quashed at the pre-execution stage. 6. As against that, Ms. Nisha Thakore, learned Asst. Government Pleader submitted that not only the criminal history of the cases filed against the petitioner, there are in all 6 cases registered in the year 2019. 6. As against that, Ms. Nisha Thakore, learned Asst. Government Pleader submitted that not only the criminal history of the cases filed against the petitioner, there are in all 6 cases registered in the year 2019. She has further submitted that despite, at earlier occasions, considering the material at relevant point of time, no proposal was there to preventively detain the petitioner and therefore, the petitions filed by the petitioner at pre-execution stage disposed of on that ground, his activity continued unabated and in almost all years there are more than 1 offence committed by him of the same nature. She has further submitted that the petitioner can also be termed as property grabber as he encroaches upon property or he is alleged to encroach upon the land of different persons or got created forged document in respect of property and thereby, claimed right over the same and who objects to it, the petitioner, along with his colleagues, assault them also. According to her, the nefarious activity of the petitioner continued unabated since several years and therefore, even if petition at pre-execution stage may be maintainable, it should not be entertained. She has further submitted that the petitioner is not even sure of whether any detention order is passed against him or not, therefore, this petition cannot be said to be filed at pre-execution stage but may be at pre-proposal stage. She has further submitted that the cases filed against the petitioner are not only offences relating documents but the offences alleged against the petitioner are in the nature of offences affecting human body as also offences against property for which he is being prosecuted and they fall under the Chapter XVI and XVII, therefore according to her, offences are not only falling under Chapter XVIII relating to documents and to property marks as contended by the petitioner. She has further submitted that it cannot be presumed that except the FIR, there may not be any material speaking about nefarious activities, proximate in time, which may be sufficient to pass an order of preventive detention against the present petitioner. Considering the long drawn criminal history, according to her submissions, this petition, which is filed at pre-execution stage, may be at pre-proposal stage, may not be entertained by this Court. 7. Considering the long drawn criminal history, according to her submissions, this petition, which is filed at pre-execution stage, may be at pre-proposal stage, may not be entertained by this Court. 7. Considering the submissions made by the learned advocate for the petitioner as also the precedents cited at the bar, it is clear that petition at pre-execution stage is maintainable. However, not a single precedent cited by the learned advocate for the petitioner says that in each case the petition at pre-execution stage be entertained. Though considering the right to liberty protected by Articles 21 and 22 of the Constitution of India by catena of decision of the Hon'ble Supreme Court says that the powers under Articles 226 and 32 of the Constitution of India are wide, and are untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the Courts have over the years evolved certain self-restraints for exercising these powers. 8. Considering the continuous unabated criminal activities carried on by the petitioner, though on several occasions as contended by Mr. Mangukiya, learned advocate for the petitioner, the authority had come out with no proposal to preventively detain him, petitions were disposed of, It did not deter the petitioner from further carrying it throughout, 6 more cases registered in the year 2019 before different Police stations. It is very clear that his area of operation is not limited to a particular Police Station. Therefore, it is not a pure and simple property dispute reflected from the FIRs in between private parties as sought to be contended by the learned advocate for the petitioner. On the contrary, the cases registered against the present petitioner pertains to not only the offences affecting the human body but also an offence of criminal trespass entering upon land of private individual. 5 cases wherein, complaints have been quashed as contended by Mr. Mangukiya, learned advocate for the petitioner, is out of settlement in between the parties and not on merit. Therefore, the activity of the petitioner cannot be said to be only a problem of law and order situation but it may potentially affect the public order too. 9. 5 cases wherein, complaints have been quashed as contended by Mr. Mangukiya, learned advocate for the petitioner, is out of settlement in between the parties and not on merit. Therefore, the activity of the petitioner cannot be said to be only a problem of law and order situation but it may potentially affect the public order too. 9. The offences committed by the petitioner in the remote past and the orders passed by this Court at pre-execution stage directing not to consider those cases involved in those petitions, may not be relied on for passing of any order of preventive detention by the Detaining Authority, still the activities of the petitioner cannot be ignored by this Court while considering petition under Article 226 of the Constitution of India, not at pre-execution stage but may be at pre-proposal stage. Though stale cases cannot be considered for passing an order of preventive detention, it reflects the nature of the petitioner and it will certainly deter the Court for granting any relief to him under Article 226 of the Constitution of India where petitioner is also not sure whether order of detention is passed or not, that too, in a petition filed at pre-execution stage. 10. This petition is filed only on assumption that order of preventive detention will be passed against the petitioner. However, the foundational facts are missing in it. If in every case a detenue is permitted to file petition at pre-execution stage and seek stay of operation of the order before it is executed, the very purpose of the order and of the law under which it is to be made, will be frustrated. Mr. Mangukiya, learned advocate for the petitioner has failed to show any glaring facts based on which it can be said that no prudent man may even subjectively satisfied for passing an order of preventive detention. He has further failed to show that it falls within those few cases, limited in scope and number to entertain the petition, that too, at pre-execution stage. He has failed to make out an exceptional case where not only pre-execution stage but even pre-proposal stage, it would compel this Court to entertain this petition and exercise its powers of judicial review under Article 226 of the Constitution of India. He has failed to make out an exceptional case where not only pre-execution stage but even pre-proposal stage, it would compel this Court to entertain this petition and exercise its powers of judicial review under Article 226 of the Constitution of India. Since no order of detention is yet claimed to have been passed by the Authority, as submitted by the petitioner, whether detention order is passed on sound principles of law or not and whether the said decision is arbitrary or not, cannot be decided in this petition. 11. Considering the continuous unabated nefarious activities carried on by the petitioner, this Court would be slow in entertaining any petition at the instance of such petitioner challenging the order of preventive detention, if at all it is passed, without the said order is executed upon him. Hence, this petition is dismissed. Notice is discharged.