Special Civil Application No. 5179 of 2017. Case: Jagdishbhai Ratilal Mehta Brahmin Vs State of Gujarat and Ors.. High Court of Gujarat (India)

Case NumberSpecial Civil Application No. 5179 of 2017
CounselFor Appellant: Pawan A. Barot, Advocate and For Respondents: Rakesh Patel, AGP
JudgesS.H. Vora, J.
IssueBombay Prohibition Act, 1949 - Sections 66(1)B, 81; Constitution of India - Articles 14, 19, 21, 226; Gujarat Prevention of Anti-social Activities Act, 1985 - Sections 2(b), 3
Judgement DateMarch 17, 2017
CourtHigh Court of Gujarat (India)


S.H. Vora, J.

  1. Rule. Learned A.G.P. waives service of Rule for the respondent - State.

  2. With the consent of the learned advocates appearing for the respective parties, the present petition is taken up for final hearing today.

  3. By way of this petition under Article 226 of the Constitution of India, the petitioner prays to issue a writ of mandamus or any other appropriate writ, order or direction to set aside the order of detention, if any, passed by the detaining authority against the petitioner under the Gujarat Prevention of Anti-social Activities Act, 1985 (for short, the 'Act') in exercise of powers under Sub-Section (2) of Section 3 of the Act as being illegal, null and void, arbitrary, without jurisdiction and competence suffering from legal mala fides and violative of Articles 14, 19 and 21 of the Constitution of India.

  4. The petitioner apprehends that the petitioner is likely to be detained under the Act on the pretext of F.I.R/s for the offence punishable u/s. 66(1)B, 65AE, 116(B) and 81 of the Prohibition Act.

  5. During the course of hearing, the State was directed to place on record the detention order for Court's perusal and consequently, the State has placed on record the detention order dated 17.1.2017 passed by the detaining authority.

  6. Learned advocate for the petitioner has submitted that the petition in the present form is maintainable and tenable both on law as well as on facts to substantively challenge the order of detention at pre-execution stage in view of the decision of the Hon'ble Apex Court in the case of Deepak Bajaj v. State of Maharashtra and another reported in (2008)16 SCC 14. According to him, the Hon'ble Apex Court, considering its earlier decision in the case of Additional Secretary to the Government of India and others v. Smt. Alka Subhash Gadia and another reported in 1992 Supp.(1) SCC 496 and the objections taken at the pre-execution stage by the other side therein, on the identical ground, has held that "we are of the opinion that the five grounds mentioned therein on which the Court can set-aside the detention order at pre execution stage are only illustrative not exhaustive". Learned advocate for the petitioner also relied upon the decision of the Division Bench of this Court in the case of Mahendrasinh Mangalsinh Jadeja v. State of Gujarat and other delivered in Letters Patent Appeal No. 1495 of 2013 on 24.12.2013. Lastly, he has submitted that it is an established law that the detention in case of offence registered against detenu under the Act, is against the law. According to him, except aforesaid offence, there is no material to...

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