DHANA KISHABHAI GARCHAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs:-

(2.) The case of the petitioner is that pursuant to the FIRs which have been lodged against the petitioner, which are narrated in para 31 of the petition, the petitioner is apprehending that order of detention will be passed against him and as such, at this pre- execution stage, by making and projecting such apprehension, the extraordinary jurisdiction of this Court is invoked.

(3.) Learned advocate Mr. Sandip Patel appearing on behalf of the petitioner has vehemently contended that mere filing of two complaints against the petitioner would not be a legitimate ground for passing the order of detention against the petitioner as the quantity of liquor, which are mentioned in the complaints, is a small quantity which is in no way disturbing the Public order. It has further been submitted that in the FIRs, the name of the petitioner is not reflecting and on the basis of statement of the co-accused, the petitioner is seriously apprehending his detention. To substantiate his grievance, Mr. Sandip Patel has drawn the attention of this Court to the decision of the Supreme Court reported in (2011)5 SCC 244 and has submitted that if there is reasonable belief of passing the order of detention, the Court can interfere and extend the protection to the petitioner and there is no complete embargo not to exercise the discretion. Mr. Patel has further submitted that here is a case in which, the co-accused person has already been detained and on account of that, the petitioner is also apprehending the action of detention. By drawing the attention to page 25 of the petition compilation and the order of the Coordinate Bench, a contention is raised that in such a situation, when there is no disturbance of the Public Order, protection at pre-execution stage may be granted. According to Mr. Patel, there is no other remedy available to the petitioner, moment the order of detention is passed and allowed to be executed and as such, has submitted that there is no blanket proposition that at pre-execution stage, the petition may not be entertained. Mr. Patel has further submitted that in past, one of the Coordinate Benches of this Court has deprecated the action of the authority in passing tnterfere and extend the protection to the petitioner and there is no complete embargo not to exercise the discretion. Mr. Patel has further submitted that here is a case in which, the co-accused person has already been detained and on account of that, the petitioner is also apprehending the action of detention. By drawing the attention to page 25 of the petition compilation and the order of the Coordinate Bench, a contention is raised that in such a situation, when there is no disturbance of the Public Order, protection at pre-execution stage may be granted. According to Mr. Patel, there is no other remedy available to the petitioner, moment the order of detention is passed and allowed to be executed and as such, has submitted that there is no blanket proposition that at pre-execution stage, the petition may not be entertained. Mr. Patel has further submitted that in past, one of the Coordinate Benches of this Court has deprecated the action of the authority in passing the order of detention in petty offences and the petition was allowed with cost of Rs.10,000/- and thereby has submitted that here also, the petitioner since apprehending is seeking protection by way of the present petition.