1. By way of the present petition filed under Articles 14, 19, 21 and 226 of the Constitution of India, the petitioner has apprehended that respondent No.2 may exercise his power under Section 3 of the PASA Act and detain him as bootlegger since offence is registered against him under the provisions of Bombay Prohibition Act and further requested to quash and set aside such order if is passed by him.
2. Today, learned AGP Mr.Kabir Hathi, has placed an order dated 15.09.2012 passed by respondent No.2, by which, the authority has passed the order of detention exercising his powers under Section 3 of the PASA Act considering the solitary offence against the present petitioner.
3. The petitioner is yet not detained pursuant to the order of detention passed by respondent No.2 and, therefore,in this petition is filed at pre-execution stage of the detention order.
4. Mr.Havin S.Raiyani, learned advocate appearing for the petitioner has submitted that by catena of decisions of this Court, it has been held that only registering offence under the provisions of the Bombay Prohibition Act, the person cannot be treated as bootlegger person. He has further submitted that the Apex Court has also held that if it is found from the record that the case lodged for law and order situation and not with regard to maintenance of the order and then the order of detention is required to be quashed and set aside.
5. He further submitted that considering the petition at pre-execution stage, it has been held by the Apex Court in Para-15 in the case of Deepak Bajaj Vs. State of Maharashtra reported in (2008) 16 SCC 14, the order of detention can be quashed at pre-execution stage and requested to quash the petition.
6. I have gone through the detention order dated 15.09.2012 passed by respondent No.2. It appears that the Authority has relied upon the several statements of witnesses and have also gone through the judgments relied upon by the learned advocate for the petitioner i.e. (i) Deepak Bajaj (Supra),
(ii) Additional Secretary To The Government of India Vs. Smt. Alka Subhas Gadia reported in 1992 Supp (1) SCC 496, (iii) State of Maharashtra V. Bhaurao Punjabrao Gawande reported in (2008)3 SCC 613 and (iv) Subhas Popatlal Dave Vs. Union of India reported in 2012(6) Scale 367.
7. Para-15 of the case of Deepak Bajaj (Supra) reads as under :
15. If a person against a preventive detention order has been passed comes to Court at the pre-execution stage and satisfies the Court that the detention order is clearly illegal, there is no reason why the Court should stay its hands and compel the petitioner to go to jail even though he is bound to be released subsequently (since the detention order was illegal). As already mentioned above, the liberty of a person is a precious fundamental right under Art. 21 of the Constitution and should not be lightly transgressed. Hence, in our opinion, Alka Sukhas Gadia case cannot be construed to mean that the five grounds mentioned therein for quashing the detention order at the pre-execution stage are exhaustive.
8. In the last judgment i.e. Subhas Popatlal Dave Vs. Union of India (Supra), the Apex court has, after considering the cases of Alka Subhas Gadia , Deepak Bajaj and Bhaurao (Supra), held in Para-31 as under:
31. In the light of the above, let the various Special Leave Petitions and the Writ Petitions be listed for final hearing and disposal on 7th August, 2012 at 3.00 p.m. This Bench be reconstituted on the said date, for the aforesaid purpose.
9. Considering the above aspect and the merits of the case and with regard to the bootlegger person and considering the different ratios laid down by the Hon ble Apex Court in the case of Piyush Kantilal Mehta Vs. Commissioner of Police, AIR 1989 SC 491 and the recent judgement dated 28.3.2011 passed by the Division Bench of this Court (Coram : S.J.Mukhopadhaya C.J. & J.B.Pardiwala JJ.) in Letters Patent Appeal No. 2732 of 2010 in Special Civil Application No. 9492 of 2012 (Aartiben Vs. Commissioner of Police), prima facie I am of the opinion that at this stage it would be desirable to stay the implementation, execution and operation of the detention order dated 15.09.2012. Hence, the implementation of detention order dated 15.09.2012 is stayed till next date of hearing.
10. As per the last information, the Apex Court is in midst of hearing of the matters and the next date of hearing of the matter is on 31.01.2013.
11. Rule returnable on 12.02.2013. Learned AGP Mr.Kabir Hathi waives service of Rule on behalf of respondent No.1.
In view of the above, the implementation, execution of the detention order dated 15.09.2012 is hereby stayed till then. Direct service is permitted.
(A.J.DESAI, J.) Ashish Tripathi Page 5 of 5