Dismissed

Girish H. Trivedi v. the Commissioner of Police

Gujarat HC9 Aug 2005SCA/7721/2005

Case brief

AI extract

What is this about?

The petitioner challenged a preventive detention order passed under Gujarat PASA at the pre-execution stage, arguing that the quashing of the underlying criminal case entitled him to relief. The court held that pre-execution interference is limited to exceptional circumstances which were not present here, as the petitioner had evaded arrest. The petition was dismissed.

What the court decided

AI extract

Girish H. Trivedi Vs the Commissioner of Police — Writ and Judicial Review | Gujarat HC (2005)

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JUDGMENT

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SCA/7721/2005

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1/10

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION No. 7721 of 2005

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For Approval and Signature:

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HON'BLE MR.JUSTICE SHARAD D.DAVE

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==============================================================

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1^{Whether Reporters of Local Papers may be allowed} to see the judgment ?

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2 To be referred to the Reporter or not ?

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3^{Whether their Lordships wish to see the fair copy} of the judgment ?

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Whether this case involves a substantial question of law as to the interpretation of the 4 constitution of India, 1950 or any order made thereunder ?

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5^{Whether it is to be circulated to the civil judge} ?

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============================================================== GIRISH H. TRIVEDI - Petitioner(s)

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Versus

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THE COMMISSIONER OF POLICE & 1 - Respondent(s)

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==============================================================

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Appearance :

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MR NM KAPADIAfor Petitioner No(s).: 1.
NOTICE SERVED BY DSfor Respondent No(s).: 1.
MR PD BHATE, AGP for Respondent No(s).: 2.

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==================================================================

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CORAM :HON'BLE MR.JUSTICE SHARAD D.DAVE

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Date : 09/08/2005

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ORAL JUDGMENT

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1.Rule. Mr.Bhate, learned AGP waives service of rule on

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behalf of the respondents. With the consent of the

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SCA/7721/2005

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2/10

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JUDGMENT

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parties, the matter is taken up for final hearing.

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2.By filing this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for a writ of Habeas Corpus or a writ of mandamus or writ of certiorari or any other appropriate writ, order or direction in the like nature quashing and setting aside the impugned order of detention dated 5.4.2004 passed by respondent no.1.

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3.It is the case of the petitioner that the petitioner
came to be falsely involved in CR No.5022 of 2004
registered with Satellite Police Station on 13.3.2004.
It is also the case of the petitioner that after
reading the name of the petitioner in the newspaper,
the petitioner sent a letter to the Commissioner of
Police Ahmedabad City by FAX. The said letter is dated
15.3.2004 and as per his case, it was specifically
disclosed that the petitioner had no connection
whatsoever with Jagdish Sisodia, Maulik @ Pappu and
other seven persons. It appears from the record that,
thereafter, the impugned order dated 5.4.2004 came to
be passed under the provisions of the Gujarat
Prevention of Anti-social Activities Act, 1985 (“the
Act” for short). It is the case of the petitioner that
thereafter, the petitioner filed Criminal Misc.
Application No.5776 of 2004 under Section 482 of the

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SCA/7721/20053/10JUDGMENT

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Code of Criminal Procedure, 1973 to quash Criminal Case
No.4277 of 2004 pending before the learned 3rd Joint
Judicial Magistrate, First Class, Ahmedabad (Rural)

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which came to be filed in pursuance of FIR bearing
Prohibition CR No.5022 of 2004 on 13.3.2004 at
Satellite Police Station, Ahmedabad. The said petition
came to be allowed by this Court (Coram: J.R.Vora,J)
vide order / judgment dated 10.12.2004 and quashed
Criminal Case No.4277 of 2004 pending before the
learned 3rd Joint Judicial Magistrate, First Class,
Ahmedabad (Rural) filed pursuant to FIR bearing
Prohibition CR No.5022 of 2004 registered with
Satellite Police Station qua the present petitioner. It

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appears from the record that, thereafter, the
petitioner sent the representations dated 2.3.2005 and
10.6.2005 at Annexures-D and EE respectively to the
petition.

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4.Being aggrieved and dissatisfied with the order of detention dated 5.4.2005, the petitioner has preferred the present petition under Articles 226 and 227 of the Constitution of India for the aforesaid relief.

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5. Heard the learned advocates for the parties.

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6. It is submitted by the learned advocate Mr.N.M.Kapadia appearing for the petitioner that simply because the activities of the petitioner are prejudicial to the

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SCA/7721/2005

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4/10JUDGMENT

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maintenance of the public order within the meaning of
Section 3(1) & (4) of the Act is no ground to detain
the petitioner under the preventive detention in view
of the fact that the criminal complaint is quashed,
and, therefore, the petitioner cannot be considered to
be a “bootlegger” even if the statements of secret
witnesses are recorded to show that the activities are
prejudicial to the maintenance of public order. He
submitted that so-called activities of the petitioner
cannot be said to be against the public order.
Mr.Kapadia has submitted that the case of petitioner is
covered by the exceptions enumerated by the Honourable
Apex Court in the case of Additional Secretary to the
Government of India Vs. Alka Subhash Gadia, reported in
1992 Supp(1) SCC 496. He further submitted that on the
ground of parity also, the order of detention passed
against the petitioner is required to be revoked by the
respondents since the detention orders of persons who
were detained on the basis of CR No.5022 of 2004
registered at Satellite Police Station have been
quashedbythisHonourableCourt(Coram:
R.P.Dholakia,J). Relying upon the decision in the case

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of Mansukh Chhaganlal Bhatt Vs. Union of India,
reported in 1995(1) EFR 572, Mr.Kapadia has submitted
that the powers of revocation can be exercised even

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SCA/7721/20055/10JUDGMENT

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before the execution of detention order. He submitted

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that rejection of a representation is not a
consideration thereof and considering a representation
is not an idle formality provided by the Constitution,
and, therefore, the respondents were required to
consider the representation favourably and revoke the
order of detention passed against the petitioner. In
support of his submissions, Mr.Kapadia has relied upon
the following judgments.:

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(a) Rajindra Vs. Commissioner of Police, Nagpur Division and others, reported in 1994 Supp (2) SCC 716.

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(b) Shaik Hanif and others Vs. State of W.Bengal, reported in AIR 1974 SC 679.

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© K.Varadharaj Vs. State of T.N. And another, reported in (2002) 6 SCC 735.

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(d) Sindhi Kasam Moti since decd, through his heirs and legal representatives : Habib Kasam Sindhi and others Vs. M.N.Buch, Deputy Custodian of Evacuee Property and Collector-cum-Settlement Commissioner, reported in 1984 GLH 893.

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It is, therefore, requested to quash and set aside the
impugned detention order dated 5.4.2005 passed by
respondent no.1 against the present petitioner.

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7.On the other-hand Mr.Pradip Bhate, learned AGP

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SCA/7721/2005

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6/10

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JUDGMENT

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appearing for the respondents has opposed this petition
and has tried to support the order passed by respondent
no.1 dated 5.4.2004. He submitted that entertaining the

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petition by quashing and setting aside the order dated
5.4.2004 would amount securing right to the proposed

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detenu the right to seek judicial review of the
detention order even before it is executed and would

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also enable him thereby to pass the procedure laid down
by the law to challenge it after it is executed. He
further submitted that as held by the Honourable Apex
Court, the courts have power to entertain grievances

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against any detention order prior to its execution and
they have used it in proper basis although such cases

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have been few and the grounds on which the courts have
interfered with them on pre-execution stage which
necessarily have very limited in scope and number where
the courts are prima satisfied that (i) that the
impugned order is not passed under the Act under which

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it is purported to have been passed; (ii) that it is

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sought to be executed against a wrong person; (iii)

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that it is passed for wrong purpose; (iv) that it is

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passed on vague, extraneous irrelevant grounds, and (v)
that the authority which passed it had no authority to
do so. He, therefore, submitted that looking to the
above well settled principles enunciated in the above

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SCA/7721/2005

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7/10

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JUDGMENT

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referred judgment, it is evidently and explicitly clear
that the Court would hear such petition against the
order of detention after the order is passed. He
submitted that the petitioner is not similarly situated
person with other co-detenu since the petitioner evaded
his arrest and remained absconding till today. Relying
upon the decision in the case of Union of India and
others Vs. Parasmal Rampuria, reported in (1998) 8 SCC
402, Mr.Bhate submitted that the petitioner was first
required to be surrendered pursuant to the detention
order and then raise his grievances examined on merits.
Relying upon the decision in the case of Union of India
and others Vs. Muneesh Suneja, reported in AIR 2001 SC
854, Mr.Bhate also submitted that interference by this
Court at pre-detention statge is not permissible except
in certain circumstances. It is, therefore, requested
to dismiss the present petition.

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8.As can be seen from the record of the case that the present petition is filed by the petitioner under Articles 226 and 227 of the Constitution of India at pre-execution stage. It is well settled by now that

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there is no legal bar against the entertainment of the

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petition at pre-execution stage, however, the Court is
required to exercise the powers in such cases only in
exceptional cases. In the case of The Additional

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SCA/7721/2005

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8/10

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JUDGMENT

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Secretary to the Government of India (supra), the Apex
Court has observed therein as under.:-

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“It is not correct to say that the Courts have no

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power to entertain the grievances against any
detention order prior to its execution. The Courts

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have the necessary power and they have used it in

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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

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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.”

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9.It is, therefore, clear that the Courts have necessary

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power provided that the Courts prima facie satisfied
regarding well settled principles enunciated in the
above referred judgment. As can be seen from the facts
of the case, the case of the petitioner is not covered
by any of the aforesaid principles laid down by the

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SCA/7721/2005

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9/10JUDGMENT

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Honourable Apex Court in the case of The Additional
Secretary to the Government of India (supra). The
contention of the learned advocate appearing for the

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petitioner that on the ground of parity also, the
impugned order deserves to be quashed is ill-founded
because the present petitioner evaded his arrest and
remained absconding till today and this aspect has been
supported by para 2 of the affidavit-in-reply filed by
respondent no.1. It is averred in para 6 of the
affidavit-in-reply that the petitioner has suppressed
material facts from the Court that the order under the

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PASA has already been passed against him, and,
therefore, the petitioner cannot take shelter of the
subsequent event after passing the order of detention
to take the advantage of the same. Merely, on the
basis of quashing the Criminal Case No.4277 of 2004 qua
the petitioner cannot be said to be a ground for
quashing the impugned order since the impugned order is
passed by the detaining authority considering the other
aspects of the matter also.

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10.In view of the aforesaid aspect of the matter, I do
not find any substance in the present petition and
therefore, the same is required to be dismissed. The
petition is accordingly dismissed.

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11.At this stage, it is submitted by Mr.Kapadia that in

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SCA/7721/200510/10JUDGMENT

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view of the rejection of this petition, the petitioner
may be permitted to make appropriate representation
before the appropriate authority. However, it will be
open for the petitioner to make appropriate
representation and ultimately it is for the authority
concerned to decide the same in accordance with law.
It is made clear that this Court has not expressed any
opinion on the merit of the representation that may be
made by the petitioner.

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(Sharad D.Dave,J)

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srilatha

Girish H. Trivedi v. the Commissioner of Police

Case brief

What is this about?

What the court decided

Girish H. Trivedi v. the Commissioner of Police

Case brief

What is this about?

What the court decided

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