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Court Can Interfere With Preventive Detention Order At "Pre-Execution Stage" If Based On Vague, Extraneous Grounds: Gujarat High Court
PRIYANKA PREET
28 July 2022 9:30 AM GMT
The Gujarat High Court has reiterated that preventive detention orders can be interfered with at pre-execution stage, i.e., before the person accused is detained, if the said order is passed on vague, irrelevant grounds.The Petitioner had filed the instant application since he apprehended being detained under Prevention of Anti-Social Activities Act (PASA Act) on the pretext of the FIRs...
The Gujarat High Court has reiterated that preventive detention orders can be interfered with at pre-execution stage, i.e., before the person accused is detained, if the said order is passed on vague, irrelevant grounds.
The Petitioner had filed the instant application since he apprehended being detained under Prevention of Anti-Social Activities Act (PASA Act) on the pretext of the FIRs for offences punishable under Sections 65AE, 81 and 98(2) of Prohibition Act. He primarily contested that his alleged activity did not affect the maintenance of public adversely.
Per contra, the AGP submitted that the petition was at a pre-execution stage without surrendering. Hence, he could only challenge the detention only on the five grounds mentioned in Additional Secretary to the Government of India and others V/s. Smt. Alka Subhash Gadia, namely:
- The order was not passed under the Act under which it was purported to have been passed.
- It was executed against the wrong person.
- It was passed for a wrong purpose.
- It was passed on vague, extraneous, irrelevant grounds
- The authority did not have the power to pass the order.
The Petitioner insisted that these grounds were 'illustrative, not exhaustive.'
The Bench admitted that even though the possibility of launching a criminal proceedings nor pendency of such proceedings is a bar to preventive detention but still the authority must consider these factors before passing the detention order. Placing reliance on Rekha V/s. State of Tamil Nadu through Secretary to Government and another (2011)5 SCC 244, the High Court reiterated that only when ordinary criminal law cannot deal with the offence, the authority can take recourse to preventive detention.
In the instant case, the Court declined to term the Petitioner as a 'bootlegger' and quashed the detention order passed by the State authorities considering that the Petitioner's detention was not necessary for the maintenance of 'public order'.
The bench comprising Justices SH Vora and Rajendra Sareen concluded that the authority had failed to satisfy the court as to why the preventive detention of the Accused was necessary when ordinary criminal proceedings could serve the purpose. Per the Bench, the authority had 'not applied its mind' to this vital question and issued the order in a 'mechanical manner.'
As regards the Court's interference at the pre-execution stage was concerned, the High Court observed that the offences had been registered against the Petitioner which was not controverted by the authority. The Petitioner's detention fell within the 3rd and 4th grounds (mentioned in Alka Subhash Gadia (supra)) since it was passed on 'vague, extraneous and irrelevant grounds.'
The High Court referred to Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852] to draw a distinction between violation of 'law and order' and 'public order.' The alleged activities of the Petitioner, the Court said, did not disturb the 'tempo of the society' or disturb the 'social apparatus.' Therefore, the Petitioner was not a 'bootlegger' whose preventive detention was necessary.
Related Read: Writ Petition At Pre-Detention Stage : Madras HC Doubts Correctness Of SC Decision In 'Subash Popatlal Dave' Case
Case No.: C/SCA/11445/2022
Case Title: ANILSINH LAGHUBHA JADEJA v/s STATE OF GUJARAT
Citation: 2022 LiveLaw (Guj) 295
