A.P. RAVANI,

(1) The petition is in the nature of prayer for anticipatory bail. In the realm of punitive jurisdiction when a person is sought to be arrested and deprived of his liberty he has a right to move the court and pray for grant of bail. Under the amended provisions of the Criminal Procedure Code (sec. 438) an accused person may even move for anticipatory bail and in fit cases the courts do grant such a prayer. However in the sphere of preventive detention where the executive intends to exercise its power for the purposes of restraining a person from indulging in certain types of anti-social and dangerous activities prejudicial to the maintenance of public order will it be open to the court to entertain a petition under Art. 226 of the Constitution of India and direct the executive authority not to execute the warrant of detention against the petitioner This in substance is the question which is required to be decided in this petitions.

(2) The petitioner contends that the District Collector Khedarespondent No. 1 (it should be District Magistrate Kheda. and not District Collector Kheda) has passed an order directing him to be detained under the provisions of Gujarat Prevention of Anti-Social Activities Act 1985 (hereinafter referred to as the). According to the petitioner the said order has been passed mala fide and without application of mind. Therefore the petitioner has invoked the jurisdiction of this High Court under Art. 226 of the Constitution of India. The petitioner prays that a writ of mandamus or any other appropriate writ order or direction quashing and setting aside the detention order be issued. The petitioner also prays that pending admission and final hearing of the petition the respondent-authority be restrained from detaining him under the provisions of the aforesaid Act. The petitioner has not mentioned the date on which the order is passed. However it is an admitted position that the order of detention has still not been executed and the petitioner is not put under detention under the impugned order.

(3) The District Magistrate Kheda has passed the impugned order of detention on the ground that the petitioner is a dangerous person as defined under sec. 3 of the and with a view to prevent him from indulging in such activities as alleged he is sought to be detained. The petitioner seeks assistance of this Court and prays for issuing a writ of mandamus or habeas corpus on the ground that the detaining authority has passed the detention order on legal mala fides i.e. without taking into consideration the provisions of the the authority has passed the order to detain the petitioner. It is his further contention that once the detention order is implemented it would amount to wrongful detention of the petitioner by the detaining authority.

(4) In our opinion whether the order is passed according to the provisions of the or whether it is passed by the detaining authority without applying its mind would be an issue which would be required to be. decided after taking into consideration the grounds of detention and the materials which are required to be supplied to the petitioner. But at this stage merely because the petitioner alleges that there are no grounds for detaining him cannot be accepted. In any case the question whether the detaining authority has applied its mind before passing the detention order can be decided only after verifying the grounds of detention and other materials which are required to be supplied to the petitioner. At this stage if the petitioners contention is accepted and the prayer of the petitioner is granted the purpose of the would be frustrated which essentially operates in suspicion jurisdiction.

(5) It is the contention of the petitioner in para 4 of the petition that the petitioner was last involved in offences punishable under Indian Penal Code on 19-9-1984. However during the course of the arguments it was submitted by the counsel for the petitioner that by mistake it is stated that the petitioner was involved in the offences punishable under Indian Penal Code but as a matter of fact he was involved in offences under the Criminal Procedure Code. In our view there is no question of involvement of the petitioner for the offences under Criminal Procedure Code because under sec. 107 or 110 of the Criminal Procedure Code a person can be bound down for keeping the peace or for keeping good behaviour as the case may be. But there is no question of any offence. The learned counsel for the petitioner has admitted that there is no question of personal or factual mala fides on the part of the detaining authority in passing the detention order.

(6) On the other hand it is the contention of the learned Addl. Public Prosecutor who is appearing for the detaining authority that the petitioner is absconding since 24/08/1985 and the detaining authority has passed the order of detention after considering the material placed before him as required under the. However in this petition we are not required to consider the said contention at all.

(7) The learned counsel for the petitioner also submitted that Art. 21 of the Constitution of India would have overriding effect on Art 22 of the Constitution. But in this matter at this stage we are not required to decide or deal with the said point. This is absolutely a misconceived contention on the part of the learned counsel for the petitioner.

(8) The Act has been enacted by the State Government with a view to provide for preventive detention of boot-leggers dangerous persons drug offenders immoral traffic offenders and property grabbers for preventing their anti-social and dangerous activities prejudicial to the maintenance of public order. The very chapter of fundamental rights which guarantees and protects individual liberty has provided for the preventive detention also. Therefore while giving utmost importance for safeguarding the individual liberty the High Court cannot be oblivious of the fact that in certain cases executive is authorised to detain a person without trial provided the constitutional safeguards mentioned in Art. 22 and in the relevant law providing for preventive detention are complied with.

(9) In such cases it has got to be borne in mind by the High Court that preventive detention is not by way of punishment at all. It in intended to pre-empt or restrain a person from indulging in any conduct injurious to the society. In case of preventive detention a person is detained merely on suspicion with a view to preventing him from doing harm in future. Since the object of preventive detention is not to punish a person for having done something but it is to intercept him before he does it and to prevent him from doing it ordinarily it would not be proper for High Court to entertain petition before the order of detention is executed and the person concerned is put under detention. If this is done the very purpose and the object of preventive detention would be frustrated.

(10) However this does not mean that in proper causes the high Court has no jurisdiction to entertain such petition. But such petitions would be the rarest of the rare. By no stretch of reasoning it can be said that such type of petitions can be entertained because grounds of mala fides and that of non-application of mind are alleged in the petition. It is difficult to enumerate the cases in which the High Court may entertain such petitions even before a person is detained. There may be a case where no examination of facts be necessary. On the face of it without further examination of facts or law it should appear that the action of detaining a person is illegal and mala fide. However even in such cases it would be wiser and proper for the courts not to issue ex-parte interim order and direct the executive authority to refrain from implementing its order of detention. More appropriate and wiser course would be to hear such matters immediately say within a day or two or within a weeks time and pass an appropriate order. We say so because in the case of Talib Hussain v. State of J. and K AIR 1971 SC 62 [LQ/SC/1970/269] while repelling the submission made on behalf of the petitionerdetenu to the effect that the petitioners detention started prior to the order of detention and that his detention must on that account be held to be illegal from its inception and therefore wholly void justifying his release the Supreme Court has observed as follows:

"In regard to the submission that the petitioner was arrested and deprived of his personal liberty long before the order of his arrest and this invalidated his detention it is sufficient to point out that in habeas corpus proceedings the Court has to consider the legality of the detention on the date of hearing. If on the date of hearing it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law a writ of habeas corpus cannot issue".

In view of the aforesaid principle laid down by the Supreme Court assuming that on the date of arrest the detention is illegal then even it is open to the detaining authority to show that on the date of tearing his detention is lawful.

(11) The Supreme Court has also held that in cases of preventive detention. even the bail order should not ordinarily be passed by the High Court. In the case of State of U. P. v. Jairam AIR 1982 SC 942 [LQ/SC/1981/441] the Supreme Court has observed;

" Grave illness or pressing and personal business may justify an order of release in detention cases for a short period suited to the exigencies of the particular occasion. But a detenu cannot be released on bail as a matter of common practice on considerations generally applicable to cases of punitive detention".

(12) In the case of State of Bihar v. Rambalak Singh reported in AIR 1966 SC 1441 [LQ/SC/1966/18] the Supreme Court has confirmed the jurisdiction of the High Court of granting interim relief by way of bail to a detenu detained under the provisions of Preventive Detention Laws. But at the same time the Supreme Court has observed: There are certain inexorable considerations which are relevant to proceedings of this character and which inevitably circumscribe the exercise of the jurisdiction of the High Court to pass interim orders granting bail to the detenu.........." In the same case the Supreme Court has further observed that if the High Court is of the opinion that:

" Prima facie the allegations made in the writ petition disclose a serious defect in the order of detention which would justify the release of the detenu the wiser and the more sensible and reasonable course to adopt would invariably be to expedite the hearing of the writ petition and deal with the merits without any delay".

(13) If this is the wiser sensible and reasonable course to be adopted even after the detention of a person there we do not think how on mere allegation of mala fides and non-application of mind the petition can be entertained and the executive authority can be restrained from executing the warrant of detention. In the very same judgment the Supreme Court has observed:

"Take the case where mala fides are alleged in respect of an order of detention. It is difficult if not impossible for the Court to come to any conclusion even prima facie about the mala fide alleged unless a return is filed by the State. Just as it is not unlikely that the High Courts may come across cases where orders of detention are passed mala fide it is also not unlikely that the allegations of mala fides are made light heartedly or without justification and so judicial approach necessarily postulates that no conclusion can be reached even prima facie as to mala fides unless the State is given a chance to file its return and slate its case in respect of the said allegations and this emphasises the fact that even in regard to a challenge to the validity of an order of detention on the ground that it is passed mala fide it would not be safe sound or reasonable to make an interim order on the prima facie provisional conclusion that there may be some substance in the allegations of mala fides. What is true about mala fides is equally true about other infirmities on which an order of detention may be challenged by the detenu....".

(14) While expressing its anxiety to protect the individual liberty of citizens the Supreme Court has adverted to the inherent limitation to the exercise of this jurisdiction and observed:

"But in upholding the claim for individual liberty within the limits permitted by law it would be unwise to ignore the object which the orders of detention are intended to serve. An unwise decision granting bail to a party may lead to consequences which are prejudicial to the interests of the community at large and what is a factor which must be duly weighed by the High Court before it decides to grant bail to a detenu in such proceedings".

In the very same paragraph the Supreme Court has further observed It would be very difficult to come across a case where without a full enquiry and trial of the ground on which the order of detention is challenged by the detenu it would be reasonably possible or permissible to the Court to grant bail on prima facie conclusion reached by it at an earlier stage of the proceeding. Thereafter the Supreme Court has observed:

" It is essential to bear in mind the distinction between the existence of jurisdiction and its proper exercise. Improper exercise of jurisdiction in such matters must necessarily be avoided by the Courts in dealing with applications of this character".

The aforesaid observations made by the Supreme Court in Rambalak Singhs case (supra) AIR 1966 SC 1441 [LQ/SC/1966/18] have been reproduced in Jairams case (supra) AIR 1982 SC 942 [LQ/SC/1981/441] .

(15) In above view of the matter the principles laid down by the Supreme Court with regard to the passing of interim order of bail for a shorter period in favour of a detenu would with greater force apply to the petitions which are in the nature of application for anticipatory bail. In our opinion it would not be wiser sensible and reasonable for the High Court to entertain such petition and restrain the executive authority from executing the warrant of detention.

(16) No other contention is raised.

(17) In the result the petition is rejected summarily. Notice discharged. (KMV)