IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1469 of 2012 In SPECIAL CIVIL APPLICATION NO. 7386 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ MANCHARAM SAMARAM MEENA Appellant(s) Versus STATE OF GUJARAT & 2 Respondent(s) ================================================================ Appearance:
MR.K S CHANDRANI, ADVOCATE for the Appellant(s) No. 1 MS KRINA CALLA, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 28 /12/2012 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1.0 This appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful writ-applicant of an application under Article 226 of the Constitution of India and is directed against the order dated 23rd August, 2012, passed by the learned Single Judge, by which her Ladyship, dismissed the writ- application.
2.0 The facts giving rise to this appeal may be summarized as under;
2.1 The appellant preferred a writ-application under Article 226 of the Constitution of India, praying for a writ of mandamus or any other appropriate writ, order or direction to quash and set aside the order of detention passed by the respondent No.2, under the provisions of Gujarat Prevention of Anti Social Activities Act, 1985(herein after referred to as ‘the PASA Act’, for short), at the pre-execution stage.
2.2 It appears that Police Sub Inspector of Anti-Human Trafficking Unit, Rajkot City, lodged a First Information Report, at ‘A’ Division Police Station, Rajkot, registered as C.R. II No. 58 of 2012, against the present appellant and two other co-accused for the offence punishable under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 . It appears, on plain reading of the FIR, that the first informant received information that activities of immoral trafficking were going on in a hotel, named ‘Hari Om’, situated at Municipal Corporation Chowk, Rajput Para, main road at Rajkot and the appellant was the manager of the said hotel. Accordingly, a trap was laid by sending a decoy, as a customer, at the said hotel and the trap was successful. Accordingly, the appellant, herein, and two other co-accused, who were pimps, were arrested by the police.
2.3 It also appears that subsequently, the appellant and the other two accused were ordered to be released on bail by the learned JMFC.
2.4 On the strength of the said incident, the Commissioner of Police, Rajkot City, after being subjectively satisfied, thought fit to pass an order of detention against the appellant and the other two accused, under the provisions of the PASA Act. It also appears that the said order of detention was served upon the other two co-accused and they were taken in detention, accordingly. Thus, the order of detention, so far as the other two companions of the appellants were concerned, the same was executed successfully. However, the appellant, somehow, managed to evade the execution of the order of detention passed against him and went in hiding. Even, as on today, the appellant is absconding, and therefore, the authorities have not been able to serve the order of detention passed under the PASA Act.
2.5 Apprehending that the authorities would serve the order of detention and may take him in preventive detention, the appellant thought fit to file a writ-petition being Special Civil Application No.7386 of 2012 and challenged the order of detention, at a pre-execution stage, on the ground that the authorities could not have passed the order of preventive detention under the PASA Act and the grounds on which the order of detention has been passed are vague, extraneous and irrelevant.
2.6 The learned Single Judge, in the first instance, thought fit to issue notice on the respondents. Pursuant to the notice served upon the respondents, an affidavit-in-reply was filed by the detaining authority i.e. Commissioner of Police, Rajkot City, stating that the order of detention had been passed under the provisions of Section 3 of the PASA Act, dated 20th April, 2012 and bearing No. PCB/DTN/PASA/118/2012. It was also stated in the said affidavit-in-reply that the appellant was a habitual offender and on the strength of the materials on the record, the appellant had been ordered to be detained under Section 2(g) of the PASA Act.
2.7 The only contention of the learned Counsel appearing for the appellant before the learned Single Judge was that the order of detention, under the PASA Act, could not have been passed on the strength of a solitary offence being registered and that the grounds on which the order of detention was passed were vague, extraneous and irrelevant. The said contention failed to find favour with the learned Single Judge and the learned Single Judge, accordingly, after applying the principles of law, as laid down by the Supreme Court in the case of “Additional secretary to the Government of India & Ors. vs. Alka Subhash Gadia & Anr.”, reported in 1992 (Supplementary 1) SCC 496, thought fit to reject the petition and the the petition was accordingly rejected.
3.0 Being dissatisfied with the order passed by the learned Single Judge, the appellant has come up with this appeal.
4.0 In the present case, the appellant, herein, thought fit to challenge the detention order at the pre-execution stage without having knowledge about the reasons and / or grounds for issuance of the detention order, and therefore, could not have questioned the validity and / or sufficiency of the reasons for issuance of the impugned detention order, at that stage. In absence of service of the impugned detention order, the relevant materials, containing the reasons and / or grounds for issuance of the said impugned order of detention, could not be disclosed to the appellant nor the learned Single Judge had any opportunity to examine such materials, at that stage. Indisputably, at the pre- execution stage, scope for challenging the order of detention is very limited. An order of detention can be struck down at the pre- execution stage, in the rarest of rare case on certain specified limited grounds, which have been summarized by the Hon’ble Supreme Court of India in the case of Additional Secretary to the Government of India Vs. Smt. Alka Subhash Gadia & Anr.”, (Supra). The relevant portion as contained in Para-30 of the aforesaid decision is quoted hereunder:
“30. ... The Courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the Courts have interfered with them at the pre- execution stage are necessarily very limited in scope and number, viz., where the Courts are prima facie satisfied (i) that the impugned order is not passed under the Act, under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so ...”
4.1 The Supreme Court in Alka Subhash Gadia’s case (supra) 1992 Supp (1) SCC 496 also laid down the scope of judicial review of a detention order at its pre-execution stage. The court said :
“This only emphasizes the fact that the courts have power to interfere with the detention orders even at the pre-execution stage but they are not obliged to do so nor will it be proper for them to do so save in exceptional cases.”
The aforesaid observation of the Supreme Court contained in Para-32 of the Judgment shall be read along with the passage referred to above, as contained in Para-30.
4.2 The Supreme Court finally declared the ambit of the judicial review in the following passage :
“The refusal by the Courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question.”
Here, the Supreme Court makes, no doubt, a distinction between the existence of power and its exercise. While upholding the existence of power, the Supreme Court insists that the detenu should first submit to it. The detenu cannot claim such exercise of power as matter of right. It is left to the discretion of the court and it has to be exercised judicially on well settled principles.
4.3 The Supreme Court in Alka Subhash Gadia’s case (Supra) has negatived the contention that the detention order should be served on the detenu in advance to enable him to challenge it in a Court of law before submitting to the order as this would amount to securing of the proposed detenu to the right of seeking judicial review of the detention order even before it is executed. In this case, the petitioner is not even a detenu because he has not been arrested nor has he surrendered. He is still an absconder. The right of judicial review therefore cannot be made available to a person who wants to avoid to submit to the order. The Supreme Court in the above decision said:
“... however vital and sacred the liberty of the individual, for reasons which need not be discussed over again there, the responsible framers of the Constitution although fully conscious of its implications have made a provision for making a law which may deprive an individual of his liberty without first disclosing to him the grounds of such deprivation.”
4.4 The principles enunciated in the aforesaid decision have been reiterated and reaffirmed in subsequent decisions of the Supreme Court in (1) Naresh Kumar Goyal Vs. Union of India and others, 2005 Cri. L.J. 4539, (2) State of Maharashtra & Ors. Vs. Bhauorao Punjabrao Gawande, 2008(3)SCC 613.
5.0 Mr. K.S. Chandrani, the learned Advocate appearing on behalf of the appellant submits that the impugned detention order can be challenged before this Court, in a writ petition, even at the pre-execution stage, in view of the ground 5 (iii) & (iv) mentioned in the aforesaid decision in the case of “Smt. Alka Subhash Gadia”(Supra). It has been argued on behalf of the appellant that the impugned detention order has been passed for a wrong purpose and also on vague, extraneous and irrelevant grounds.
5.1 Mr. Chandrani, also submitted that the grounds enumerated in “Smt. Alka Subhas Gadia” (Supra) are not exhaustive, but, are merely illustrative. In support of his contention, Mr. Chandrani, heavily relied upon the observations made by the Supreme Court in the case of “Dipak Bajaj Vs. State of Maharashtra & Anr.”, (2008) 16 SCC 14. Mr. Chandrani, laid emphasis on the observations made in Paras-6, 9, 12 and 15, thereof. Thus, according to Mr. Chandrani, if a person against whom, an order of preventive detention has been passed, comes to the Court at the pre-execution stage and satisfies the Court that the detention order is clearly illegal, there is no reason why the Court should stay its hands and compel such a person to go to jail, even though, he is bound to be released, subsequently. According to Mr. Chandrani, liberty of a person is a precious fundamental right under Article 21 of the Constitution and the Court should not permit the authorities to transgress such a right. He, therefore, submitted that the learned Single Judge committed a grave error in not entertaining the petition, by applying the principles laid down in “Smt. Alka Subhas Gadia”(Supra), as a straight jacket formula.
6.0 Ms. Krina Calla, the learned Assistant Government Pleader, appearing on behalf of the State respondent, submits that the learned Single Judge committed no error, not to speak of any error of law, in rejecting the petition. Ms. Calla submits that in absence of service of detention order not only the materials containing the grounds for issuing the impugned detention order can be made available to the appellant, but, at the same time, this Court also would not get an opportunity to examine the same, in a proper manner. Ms. Calla submits that the detention order passed on vague, extraneous and irrelevant grounds can be examined by this Court only after service of the detention order upon the appellant, with relevant papers, documents and materials. She, further, submits that any contention challenging the detention order on the ground that it was passed on vague, extraneous and irrelevant grounds would necessarily involve an investigation into the facts. The facts and reasons, for which the detention order has been issued to the appellant, can only appear from the detention order itself. Accordingly, the grounds, on which the impugned detention order has been issued, can be challenged before and adjudicated by the Court, after examination of the relevant materials. Indisputably, those materials can be made available only after supply of the impugned detention order to the concerned person.
7.0 Having heard the learned Counsel for the respective parties and having examined the materials on record, the only question that falls for our consideration in this appeal is, whether the learned Single Judge committed any error in rejecting the writ- application of the appellant, herein, challenging the order of detention at a pre-execution stage.
7.1 We are of the opinion that the learned Single Judge committed no error, not to speak of any error of law, in rejecting the writ-application by applying the settled principles of law, as laid down by the Supreme Court, in “Smt. Alka Subhash Gadia”(Supra). It deserves to be noted that the FIR i.e. the prosecution was initiated against the appellant on 22nd March 2012. The order of detention is dated 24th April, 2012. However, the fact remains that the appellant has successfully evaded the service of such detention order, past almost seven months.
7.2 In “Naresh Kumar Goyal Vs. Union of India and others”(Supra), the Supreme Court examined the question, as to whether the High Court was justified in law, in not exercising its discretion under Article 226 of the Constitution to quash the order of detention, at the pre-arrest stage. While answering the said question, the Apex Court, made the following observations in Para- 8;
“8. Learned counsel for the appellant submitted that once it is shown that the State has taken no steps to execute an order of detention and the explanation furnished by the State is unsatisfactory, it must be held that the order of detention was not issued for the purpose for which it could be issued under the Act, and necessarily implied that the real purpose was something else, not authorized by law. In such a case it made no difference whether the appellant moved the High Court at the pre-arrest stage or after his arrest pursuant to the order of detention. He emphasized that expeditious steps must be taken by the State both in the matter of passing the order of detention and in executing the same. Both are lacking in the instant case. The order of detention was passed on September 4, 2002 while the complicity of the appellant is alleged to have been discovered on August 29, 2001 on the basis of the statement of the driver of the vehicle. In the matter of implementation of the order as well, there was considerable apathy and lethargy, since the order was not even executed till the date the writ petition was filed on June 25, 2003.
XXX XXX XXX 11. Mr. B.B. Singh, learned counsel appearing on behalf of the State of Bihar, submitted before us that the question involved in the instant appeal is not whether the order of detention should be struck down on the ground that the State of Bihar has not taken necessary steps to implement the order of detention, but whether at the pre-arrest stage the High Court should have exercised its jurisdiction under Article 226 of the Constitution of India to quash the order of detention on such grounds. He submitted that the decisions of this Court have taken the view that exercise of discretion under Article 226 of the Constitution of India can be justified only in appropriate cases and the scope for interference is very limited. Normally the Court would not interfere with the order of detention at a pre- arrest stage under Article 226 of the Constitution of India. He submitted that there are only 5 exceptions to this rule which would justify interference by the Court at the pre-execution stage with the order of detention. Those five situations have been enumerated in the case of Additional Secretary to the Government of India and others Vs. Smt. Alka Subhash Gadia and another : 1992 Supp (1) SCC 496;
"As regards his last contention, viz., that to deny a right to the proposed detenue to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Article 22 thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammeled 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. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri Jain’s present contention would mean that the courts should disregard all these time-honoured and well tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibal for the appellants,as far as detention orders are concerned if in every case a detenue is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the preexecution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v)that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenue, but prevents their abuse and the perversion of the law in question".
12. In Union of India and others vs. Parasmal Rampuria : (1998) SCC 402, when the order of detention passed under the Act was sought to be challenged at the pre-arrest stage, this Court called upon the respondent first to surrender pursuant to the detention order and then to have all his grounds examined on merit.
13. In Sayed Taher Bawamiya Vs. Joint Secretary to the Government of India and Others : (2000) 8 SCC 630, an argument was advanced before this Court that the exceptions enumerated in Alka Subhash Gadia (supra) were not exhaustive. The submission was repelled and this Court observed :-
"As we see it, the present case does not fall under any of the aforesaid five exceptions for the court to interfere. It was contended that these exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash Gadia case shows that it is only in these five types of instances that the court may exercise its discretionary jurisdiction under Article 226 or Article 32 at the pre-execution stage".
7.3 The appellant had sought to contend that the order, which was passed, was vague, extraneous and on irrelevant grounds, but, there is no materials for making such an averment for the simple reason that the order of detention and the grounds on which the said order has been passed has not been placed on record, inasmuch as the order has not, yet, been executed, it is not open for the appellant to contend that the non-existent order was passed on vague, extraneous and on irrelevant grounds,
7.4 The appellant does not have a copy of the same, and therefore, we are not impressed by the submissions of Mr. Chandrani that the learned Single judge ought to have called for the relevant files and should have undertaken the exercise to satisfy itself, as to whether the order of detention was sustainable, having regard to the grounds on which the same was passed. In our opi30nion, such an exercise is wholly impermissible and beyond the jurisdiction of the High Court, at a pre-execution stage. The appellant does not have a copy of the same, and therefore, he has no right to call upon the State to produce the same.
7.5 We are of the view that the case does not appear to be falling in the categories, where pre-execution challenge to the Detention Order ought to be permissible. The Supreme Court in “Naresh Kumar Goyal”(Supra) (a three judge Bench decision), after a comprehensive review of the case law and noticing the principles laid down in Alka Subhash Gadia’s case (Supra), also referred to “Sayed Taher Bawamiya V. Joint Secretary to the Government of India and others”, reported in 2000(8) SCC 630 : (a three judge Bench decision), wherein it was held that the Court in Alka Gadia’s case (Supra) was also concerned with the matter, where the detention order had not been served, but, the High Court had entertained the petition under Art. 226 of the Constitution of India. The Court held that equitable jurisdiction under Art. 226 and Art. 32, which is discretionary in nature, should not be exercised in a case where the proposed detenu successfully evades the service of the order. If, in every case the detenu is permitted to challenge and seek the stay of the operation of the order before its execution, the very purpose of the order and the law under which it is made, will be frustrated, since the order are in operation for a limited period. The Supreme Court, however, noted that the Courts have necessary power in appropriate cases to interfere with the detention order at the pre-execution stage, but, the scope of interference is very limited. It was held that the Courts would interfere at the pre-execution stage with detention orders, only after they were satisfied of the existence of the five situations enumerated earlier. In the instant case, it is the petitioner’s own contention that he has not allowed the detention order to be served on him.
7.6 We shall, now, deal with the decision of the Supreme Court in the case of “Deepak Bajaj” (Supra), which has been heavily relied upon by the learned Counsel appearing for the appellant. In the said case, the challenge was to the order of detention passed against the petitioner under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. At the very outset, an objection was raised by the learned Counsel for the respondent – State of Maharashtra that the petition could not be entertained because the petition was filed at a pre-execution stage i.e. before the petitioner had surrendered or was arrested. The decision of “Alka Subhash Gadia”(Supra) and the other decisions of the Apex Court were relied in support of the preliminary objection. In the said case, the Supreme Court on a perusal of the grounds of detention, which were annexed to the petition, noticed that the basic allegations against the petitioner were that he had imported 29 consignments of goods, duty free, which were meant to be used as a raw material for manufacturing of goods, which ought to have been exported, but, instead the same were sold in the local market. It was also alleged that the petitioner had obtained duty free replenishment (DFR) Certificate and had misused the same.
7.7 The Supreme Court, after going through the necessary materials, which were brought on record, thought fit to allow the petition, solely on the ground that the relevant material was not placed before the detaining authority, when it passed the order of detention. On that ground alone, the order of detention was set aside. While setting aside the order of detention, the Bench made the following observations:
“6. We have carefully perused the above observations in Smt. Alka Subhash Gadia’s case (supra) and we are of the opinion that the five grounds mentioned therein on which the Court can set aside the detention order at the pre execution stage are only illustrative not exhaustive.
XXX XXX XXX 9. If a person against whom a prevention detention order has been passed can show to the Court that the said detention order is clearly illegal why should he be compelled to go to jail? To tell such a person that although such a detention order is illegal he must yet go to jail though he will be released later is a meaningless and futile exercise.
XXX XXX XXX 12. If a person is sent to jail then even if he is subsequently released, his reputation may be irreparably tarnished. As observed by this Court in State of Maharashtra & Ors. vs. Public Concern for Governance Trust & Ors. 2007 (3) SCC 587, the reputation of a person is a facet of his right to life under Article 21 of the Constitution (vide paragraphs 39 and 40 of the said decision).
XXX XXX XXX 15. If a person against whom a preventive detention order has been passed comes to Court at the pre execution stage and satisfies the Court that the detention order is clearly illegal, there is no reason why the Court should stay its hands and compel the petitioner to go to jail even though he is bound to be released subsequently (since the detention order was illegal). As already mentioned above, the liberty of a person is a precious fundamental right under Article 21 of the Constitution and should not be likely transgressed. Hence in our opinion Smt. Alka Subhash Gadia’s case (supra) cannot be construed to mean that the five grounds mentioned therein for quashing the detention order at the pre-execution stage are exhaustive.”
7.8 In our opinion, no absolute proposition of law could be said to have been laid down by the Supreme Court in “Deepak Bajaj” (Supra) so as to assert that the order of detention could be challenged at a pre-execution stage, on any grounds, other than the five grounds mentioned in “Alka Subhash Gadia” (Supra). We have noticed that in the said case, the grounds of detention were very much before the Court for its perusal. It is not clear from the decision of “Deepak Bajaj” (Supra), as to how the entire grounds of detention were on the record of the Court. It is only after going through the grounds of detention and the other materials that the Court took the view that the order of detention deserved to be set aside, as most relevant material was not placed before the detaining authority and if such material would have been placed before the detaining authority, then, perhaps the subjective satisfaction of the detaining authority would have been otherwise.
7.9 Yet, again, this issue was examined by the Supreme Court in “State of Maharashtra & Ors. Vs. Bhaurao Punjabrao Gawande” (Supra). In the said case, in view of the prejudicial activities of the Bhaurao in black marketing of essential commodities (kerosene), the Commissioner of Police, in exercise of powers conferred upon him under sub-Section (1) read with clause(b) of sub-Section(2) of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, had directed that Bhaurao be detained. The grounds of detention were sought to be served upon Bhaurao on the same day, however, Bhaurao, somehow came to know about the order of detention, which was passed against him and absconded himself. He, therefore, could not be detained, nor served with the order and the grounds of detention in support of the order of detention. The detenue, Bhaurao, without submitting to the order of detention and surrendering, filed a writ-petition being Special Civil Application No. 372 of 2006 in the High Court of Bombay( Nagpur Bench), for issuance of appropriate writ, direction or order to quash and set aside the order of detention dated 27th July, 2006, being illegal, unwarranted and vitiated by mala fide. The High Court of Bombay (Nagpur Bench), partly allowed the petition filed by the Bhaurao and set aside the order of detention passed by the Commissioner of Police, Nagpur City. The High Court held that the detenue was not entitled to know the grounds, on which the order of detention had been passed, unless he surrendered. The Nagpur Bench, however, proceeded to state that it perused the grounds of detention with a view to satisfy itself about the legality and the order of detention. The Bench also noted that the authorities made the record available to the Court and the Court had carefully examined the same. The bench concluded that the petition of Bhaurao could be entertained at pre- execution stage. The said order passed by the Nagpur Bench was challenged before the Apex Court by the State of Maharashtra.
7.10 The Apex Court took the view that the case was not one, falling within the category of exceptional case and the High Court had committed an error of law in setting aside the order passed by the Nagpur Bench and left it open to the authorities to execute the order of detention. The Apex Court also clarified that it was equally open to the detenu to challenge the legality thereof, on all available grounds.
7.11 In Bhaurao (Supra), the Apex Court took notice of the decision of a coordinate Bench in “Subhash Muljimal Gandhi Vs. L. Himingliana”, (1994) 6 SCC 14. In “Subhash Muljimal Gandhi” (Supra) an order of detention was challenged by the detenue at the pre-execution stage and it was contended by the detenue that the contingency noted in “Alka Subhash Gadia” (Supra) were illustrative and not exhaustive. Quoting the decision of “Subhash Muljimal Gandhi” (Supra), the Apex Court made the following observations in Para- 56 and 57;
“56. In this connection, it may be profitable if we refer to a decision of this Court in Subhash Muljimal Gandhi v. L. Himingliana & Anr., (1994) 6 SCC 14. There, an order of detention was challenged by the detenu at pre-execution stage. It was contended by the detenu that the contingencies noted in Alka Subhash Gadia were illustrative and not exhaustive. It was submitted that there might well be other contingencies where such order could be questioned at pre-execution stage. In that case also, it was alleged that the detenu was harassed, humiliated and beaten by authorities and the case called for grant of relief before execution of order of detention.
57. Negativing the contention and referring to Alka Subhash Gadia and N.K. Bapna v. Union of India, (1992) 3 SCC 512, the Court said;
"The above principles laid down in Alka Subhash Gadia have been quoted with approval by another three-Judge Bench in N.K. Bapna v. Union of India ((1992) 3 SCC 512. Bound as we are by the above judgments, we must hold that the other contingencies, if any, must be of the same species as of the five contingencies referred to therein. Coming now to Mr. Jethmalani’s submission, that the detention order was passed ’for a wrong purpose’, namely, to harass and humiliate the appellant by concocting a false case of smuggling, based primarily on a confession obtained from him after subjecting to him to assault, illegal detention and extortion we find that the detaining authority has denied the allegations of assault and extortion. Needless to say these are disputed questions of fact, which we cannot entertain much less delve into or decide upon. In any case, the said fact, even if true cannot vitiate the order of detention". (emphasis supplied)”
7.12 It will also be profitable for us to quote the observations made by the Apex Court in Para-63 of the said decision;
“63. From the foregoing discussion, in our judgment, the law appears to be fairly well settled and it is this. 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.”
7.13 Thus, in our opinion, the decision of the Supreme Court in “Deepak Bajaj”(Supra) would not save the situation for the appellant. Even otherwise, the appellant has relied upon the Clauses (3) and (4) as laid down in “Alka Subhash Gadia” (Supra) i.e. the order is passed for a wrong purpose and the same is on vague, extraneous and irrelevant grounds. We have already discussed in the earlier part of our judgment as to why this submission is without any merit.
7.14 As held by the Supreme Court in “Subhash Muljimal Gandhi” (Supra), the other contingencies, if any, must be of the same species as of the five contingencies referred to by the Supreme Court in “Alka Subhash Gadia” (Supra). This is suggestive of the fact that even if there be any other ground available to the detenue i.e. other than the contingencies laid down in “Alka Subhash Gadia” (Supra), the said contingencies must be of the same species.
8.0 For the foregoing reasons, we do not find any merit in this appeal and the same deserves to be dismissed.
8.1 The appeal is, accordingly, dismissed. However, there shall be no order as to costs.
8.2 Before parting, we may clarify that we have otherwise not gone into the merits of the order of detention and if appellant surrenders and allows the order of detention to be executed, then, it shall be open for the appellant to challenge the same by filing an appropriate writ-application, on all available grounds in law.
(BHASKAR BHATTACHARYA,CJ) UMESH (J.B.PARDIWALA, J.)