Guj HC | Pre-detention matters are only maintainable in exceptional cases; Court dismisses petition

Gujarat High Court: A.C. Rao, J., dismissed a petition which was filed seeking to challenge the legality and validity of the threatening action of respondent 2 of passing the order of detention under the Gujarat Prevention of Antisocial Activities Act, 1985 (PASA Act) at pre-execution stage.

The counsel for the petitioner, Mr N.R. Desai contended that if there is an order of detention, the same may be quashed and set aside as being illegal, invalid and arbitrary. It was submitted that there was only one FIR registered against the present petitioner and therefore, merely filing of FIR against him would not be construed and culminated into the definition of a “Bootlegger” under the PASA Act. The counsel for the State, Ms Megha Chittaliya contended that the pre detention petition was not maintainable.

The Court relied on the judgment of the Supreme Court in Addl. Secy. to the Govt. of India v. Alka Subhash Gadia, 1992 Supp (1) SCC 496 where exceptions were mentioned,

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 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 Court in lieu of the above judgment held that contention raised by the petitioner cannot sustain as only in the exceptional cases, pre detention matters were maintainable. The Court dismissed the petition considering the fact that only one FIR had been registered against the petitioner and the case of the petitioner is not such that it can be entertained under Article 226 of the Constitution of India and no other exceptional circumstance is carved out to intervene with the principles of the detention.[Thakarsibhai v. State of Gujarat,  2020 SCC OnLine Guj 1900, decided on 22-10-2020]


Suchita Shukla, Editorial Assistant has put this story together

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