THAKOR SHAKRAJI VARVAJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) RULE . Heard learned advocate Mr.Jigar Gadhavi for the petitioner and learned AGP Ms.Moksha Thakkar, who waives service of notice of rule for the respondent - State on merits.

(2.) THE petitioner has filed this petition praying to quash the proposed order of detention taking all the grounds on merits of such order of detention even in absence of grounds of detention. The sum and substance of the petition is to the effect that petitioner apprehends his detention because of some pending criminal cases against him for which FIRs are filed against him or he apprehends detention because of similar order against co -accused with with him in FIRs which are pending investigation. Therefore, petitioner has taken several grounds in petition challenging the subjective satisfaction of the detaining authority and arguing that for such reason i.e. only because of pendency of some FIRs, the detaining authority cannot pass order of detention. Thereby, practically, this petition is filed under apprehension and even without knowing the real reason, cause and grounds for detention. In support of his case, petitioner has relied upon several decisions of this Court as well as Apex Court where order of detention were quashed and set -aside. However, all such decisions are after considering the actual order of detention and in some cases it was quashed mainly because of technicality and in some cases in absence of proper evidence, Court has come to the conclusion that there was no subjective satisfaction or that there was no application of mind by the competent authority to arrive at such subjective satisfaction. However, in the present case, in absence of actual order of detention, there cannot be scrutiny and determination about the validity, legality and thereby consideration of subjective satisfaction by the competent authority.

(3.) SUCH issue i.e. right of the persons to challenge the proposed order of detention and jurisdiction of the Court to grant appropriate relief in such type of petitions, which are more particularly described as pre -detention petitions, has been considered by this Court as well as Honble the Apex Court in several reported cases. Since there was some difference of opinion and thereby different decisions by the Apex Court in different cases, all such matters are being dragged since long, considering the pending decision in the case of Subhash Popatlal Dave V. State of Maharashtra in Writ Petition (Criminal) No.137 of 2011 by the Apex Court. For consideration of such latest judgment and the issue, the following cases were scrutinized: -