1. This petition challenges enforcement, implementation and execution of the order of detention prepared and sought to be served on the petitioner by the detaining authority.
2. The brief facts as arising from the petition are that an FIR being C.R.No.10/11 for the offence punishable under Secs.452, 323, 504, 506 and 114 of IPC was registered on 7-1-2011 wherein name of the petitioner was not mentioned. Thereafter, another FIR being C.R.No.349 of 2011 was registered for the offence punishable under Sec.413 of IPC on 9-12-2011 alleging that stolen articles were sold to the petitioner. The petitioner was arrested on 9-12-2011 and later released on bail vide order dated 15-12-2011 passed by the learned Addl. Sessions Judge, Rajkot. Based on this offence, since the petitioner is having an apprehension of an order of detention being passed against him, this petition is preferred.
3. Heard learned Senior Counsel, Mr.N.D.Nanavaty for Mr.H.R.Prajapati for the petitioner and learned Asstt. Government Pleader, Mrs.Krina Calla for the respondents.
4. Learned Senior Counsel, Mr.N.D.Nanavaty for the petitioner has submitted that the petition in the present format is maintainable and tenable both on facts as well as on law to substantively challenge the order of detention at a pre-execution stage in view of the decision of a Division Bench of this Court in the case of Ramesh Vandha Modhwadiya reported in 2009(3) G.L.H. Page 296 as well as the Hon'ble Apex Court in the case of Collector and Dist. Magistrate V. S.Sultan reported in AIR 2008 SC page 2096. It is further submitted that the allegation against the petitioner is that the petitioner purchased the stolen articles from the persons who committed theft which, according to him, would not fall within the purview of 'public order'. It is further submitted that mere registration of offence would not entitle the authority to resort to preventive detention unless there is material to show that being a dangerous person, his activities are prejudicial to maintenance of public order. It is further submitted that the detaining authority has no authority to pass the detention order on the basis of registration of false offence making allegation of purchasing stolen property and hence, the order of detention is illegal and bad in law.
5. Learned Asstt. Government Pleader on the other hand has submitted that this petition at the pre-execution stage without surrendering to the order of detention is untenable.
6. It is true that this petition is filed at a pre-execution stage. The petitioner is a goldsmith and the only allegation against the petitioner appears to be that he purchased the stolen golden and silver articles from accused who committed theft of said articles. It is to be noted that there is no other material on record to show that the activities of the petitioner being a dangerous person is prejudicial to the maintenance of public order. It is to be noted that before passing an order of detention of a detenu, the detaining authority must come to a definite finding that there is threat to the “public order” and it is very clear that the present case would not fall within the category of threat to “public order”.
7. In the opinion of this Court, the activities of the petitioner can, by no stretch of imagination, can be said to be disturbing the public order. Therefore, on this ground, the subjective satisfaction arrived at by the detaining authority is vitiated on account of non- application of mind and the impugned order, therefore, deserves to be quashed and set aside. In view of the above, when the order of detention has been passed by the detaining authority without having adequate grounds for passing the said order, it cannot be sustained and, therefore, it deserves to be quashed and set aside.
8. The petition is allowed. The order of detention dated 9-1- 2012 passed by the Commissioner of Police Rajkot City bearing No.PCB/DTN/PASA/06/2012 against the petitioner is hereby quashed and set aside. Rule is made absolute accordingly. Direct service is permitted.
[M.D.SHAH,J.] radhan