DILIPBHAI SURESHBHAI SHANSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HEARD learned advocate Mr.Japan V. Dave for the petitioner and learned AGP Ms.Moxa Thakkar 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 FIR/s is/are filed against him or he apprehends detention because of similar order against coaccused with with him in FIR/s 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 FIR, 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 setaside. 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.) The common impression and argument at bar that in the judgment under reference, Hon'ble Mr. Justice Altamas Kabir, CJI (as he then was) has held that litigants have absolute right to challenge the proposed order of detention at predetention stage and the Court has to allow such application irrespective of restrictions laid down by the another three Judges Bench of the Apex Court in the case of Additional Secretary to the Govt. of India And Ors. Vs. Alka Subhash Gadia and Anr. reported in 1992 Supp (1) SCC 496, is not correct.