RAJENDRASINH ALIAS RAJU DABHODI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS petition challenges enforcement, implementation and execution of the order of detention prepared and sought to be served on the petitioner by the respondent No. 2.

(2.) THE brief facts as set out in the petition by the petitioner are that nephews of the petitioner namely, Harjindersingh Surjitsingh Mattoo (Sardar) and Dilbagsingh Surjitsingh purchased a shop in Wadaj for a consideration of Rs. 4,90,001/- from Rajendrakumar Mangaldas Dami by a registered sale deed. One Shri Ramesh Dalabhai Desai, Municipal Corporator of Nawa Wadaj Municipal Ward started threatening Harjindersingh Surjitsingh Mattooto as well as his family members if he does not sell the said shop to him. However, as Shri Harjindersingh Surjitsingh Mattooto did not succumb to the said threats and pressure, Shri Ramesh Dalabhai Desai through his nephews namely Dinesh Desai and Raju Desai intentionally got placed a pan stall (galla) outside the shutter of the said premises causing nuisance and thereafter, said Ramesh Dalabhai demanded Rs. 1. 50 lakhs from Harjindersingh for removal of said pan galla. Though Harjindersingh made several representations to concerned authorities including the respondents Nos. 2 and 3, all fell on deaf ears. Due to inaction on the part of concerned authorities and out of frustration, said Harjindersingh tried to immolate himself on 1-10-2008 drawing attention of media. However, a case was lodged against said Harjindersingh for attempted self-immolation. As he was left with no other option, he tried to lodge a complaint. Since it was not accepted by the respondent No. 2, it was dispatched by registered post. He then filed a petition being Special Criminal Application No. 2309 of 2008 which was allowed by this Court vide order dated 17-1-2009. As the petitioner being uncle of Harjindersingh and Dilbagsingh, keeping grudge against the petitioner, Municipal Corporator Shri Rameshbhai Dalabhai using his influence with the respondent No. 2 sought to lodge a false and fabricated complaint against the petitioner and Dilbagsingh being C. R. No. I-634 of 2008 with Naranpura Police Station. However, the remand sought for of the petitioner was rejected. On the next day, the petitioner was released on bail. It is alleged by the petitioner that in abuse of process of law, proceedings for cancellation of bail of the petitioner were initiated. However, it was rejected by the City Sessions Court vide order dated 11-12-2008 passed in Cri. Misc. Appln. No. 3691 of 2008. In order to cause prejudice to the petitioner, proceedings under the Bombay Police Act were initiated for externment of the petitioner and an order of externment was passed against him and the matter was pending before the appellate authority at the time of filing the present petition. According to the petitioner, another false case was registered at the instance of name of original complainant of FIR No. I-484 of 1997 being Kamlesh Tulsibhai Chauhan for the offences punishable under Secs. 294 (b) and 506 (2) of IPC and Secs. 3 and 7 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act being FIR No. II-3233 of 2008. The petitioner made a representation to the Commissioner of Police on 25-10-2008 to which, he received a response from the Chief Minister under its "swagat" Programme on 7-11-2008. However, since it had little effect, he made another representation on 25-11-2008 again to the Police Commissioner, Ahmedabad, expressing apprehension against false police action followed by a representation for taking action qua misuse of weapon by the said Rameshbhai Dalabhai Desai, the Municipal Corporator. He lastly made a communication to the Chief Minister on 25-11-2008 pointing out his grievances. It is the further case that wife of the petitioner purchased a plot with tenement adjacent to the residential plot of the petitioner. As the said Rameshbhai Dalabhai had an eye on the said plot, the petitioner was compelled to sell said plot to him. However, as the petitioner refused, said Rameshbhai threatened the petitioner by pulling out a Revolver from his pocket but the petitioner managed to escape. However, the said complaint was neither lodged nor recorded at the instance of respondent No. 2. All the aforesaid is indicative of the unfair and unbaised investigation being carried out by the respondent No. 2 being the superior officer. It is stated that the respondent NO. 2 has processed papers in relation to PASA against the petitioner in order to cause serious prejudice to the petitioner. It is further stated that one Shri Dinesh Telwala and brother-in-law of Ramesh Dalabhai Desai, who are accused in FIR I-94 of 2009 lodged by Shri Sanjaysinh K. Thakore are not arrested by the respondent No. 2 though they do not have any order of anticipatory order or any injunctive order qua said FIR. There are grave abuse of power by the respondent No. 2 at the instance of Municipal Corporator Ramesh Dalabhai Desai. It is reliably learnt by the petitioner that the respondent No. 3, upon the report of the sponsoring authority of Naranpura Police Station to the Superior Officers, has exercised powers in passing the order of detention under the provisions of Gujarat Prevention of Anti-Social Activities Act, 1985. Hence, the present petition.

(3.) AN affidavit in reply was filed by the respondent No. 3 contending that the petition filed by the petitioner was not maintainable at law. The present petition has been filed with misconception of facts and law at the pre-execution stage of detention order. It was also contended that the petitioner was required to surrender before challenging the order of detention which is yet not served on him. It was further contended that since the detaining authority on a subjective satisfaction after perusal of the relevant materials placed before it including the documents relating to two offences registered against the petitioner that the activities of the petitioner were prejudicial to the maintenance of public order, order of detention was passed against the petitioner on 23-2-2009. However, since the petitioner was under externment, it could not be served on him at his permanent residential address. Efforts made to serve at the present residential address at Dolgadh, Himmatnagar were also futile. It was further contended that during the period of externment, the petitioner committed the offence by entering into the City of Ahmedabad on 19-2-2009 and hence, an offence being C. R. No. I-93 of 2009 was also registered against him before Naranpura Police Station, Ahmedabad, for the offences under Secs. 397, 506 (2) and 114 of IPC and Sec. 25 (1) (c) of Arms Act read with Sec. 135 (1) of Bombay Police Act and hence, there was proper application of mind on the part of the detaining authority in passing the order. It was further contended that the detention orders under PASA were passed against the petitioner being PASA Nos. 165/91, 98/98 and 374/99 and the petitoner was also externed twice being Externment Order Nos. 30/93 and 97/01 looking to his antisocial activities. It was also contended that the petitioner is a habitual offender. Since the petitioner has been evading the service and execution of the detention order passed under PASA Act and not a law abiding citizen, the present petition at a pre-execution stage is not tenable in law. It was also further contended that the petitioner will have the grounds of detention after the service of detention order is effected. However, the petitioner cannot compel the authorities to disclose the grounds of detention before it is executed without surrendering to the authorities. It was further contended that interfering with the order at this stage would defeat the very purpose of the PASA Act. It was, therefore, submitted that the petition was liable to be dismissed, particularly when the detenu absconded and the order of detention along with grounds of detention and other documents could not be personally served on him.