KASTURJI GALAJI DEVDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned advocate Mr. EE Saiyed for the petitioner and learned AGP Ms. Jirga Jhaveri for for respondent No.1-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 petitioner is to the effect that petitioner apprehends his detention because of pending criminal case against him for which FIR/s is/are filed against him or he apprehends detention because of similar order against co-accused 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 FIR/s, 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 orders 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 person to challenge the proposed order of detention and jurisdiction of the Court to grant appropriate relief in such petition, which is more particularly described as predetention petition, 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. Union of India, 2012 AIR(SC) 3370by the Apex Court. For consideration of such latest judgment and the issue, the following cases were scrutinized:-