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 arising from the petition are an FIR being C.R.No.I-14 of 2012 was registered with Rajkot “A” Division Police Station for the offences punishable under Secs.324, 323, 504 and 114 of IPC. There were cross complaints filed by the otherside also. The petitioner is having an apprehension that the respondent No.2 is proposing to issue detention order against him and hence, this petition is preferred.
3. An affidavit in reply was filed by the respondent No.2 contending that the petition filed by the petitioner was not maintainable at law. The present petition is filed with misconception of facts and law at the pre-execution stage of detention order. It is also contended that the petitioner is required to surrender before challenging the order of detention which is yet not served on him. It is further contended that since the detaining authority was subjectively satisfied after taking into consideration all the relevant materials placed before it including the documents relating to the offence registered against the petitioner that the activities of the petitioner was prejudicial to the maintenance of public order, order of detention was passed against the petitioner on 21-1- 2012. The efforts made to serve at the residential address at 1, Saratia Plot, Near Jilla Garden, Rajkot, and inquiries with the family members also came to be futile, however, it was reported that after offence was registered against the petitioner and after coming to know that order of detention was passed against the petitoiner, he was absconding to evade execution of the order of detention and since the petitioner is 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 is further contended that the petitioner will have the grounds of detention after the 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 is further contended that interfering with the order at this stage without the petitioner surrendering to the authorities 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 and could not be executed.
4. Heard learned counsel for the petitioner, Mr.Shakeel Qureshi and learned Asstt. Government Pleader, Mr.L.B.Dabhi for the respondents.
5. Rule. Learned AGP, Mr.L.B.Dabhi, waives service of notice of rule for the respondents.
6. Learned counsel, Mr.Kureshi, 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 the Hon'ble Apex Court in the case of Dipak Bajaj V s. State of Maharashtra reported in (2008) 16 SCC page 14. According to him, the Hon'ble Apex Court considering its earlier decision in Alka Gadia's case and the objections taken at the pre-execution stage by the otherside on identical grounds has held that “we are of the opinion that the five grounds mentioned therein on which Court can set aside the detention order at pre- execution stage are only illustrative and not exhaustive.” He has also relied on a decision of a Division Bench of this Court (Coram: Hon'ble the Chief Justice and Hon'ble Mr.Justice J.B.Pardiwala) in the case of Artiben, W/o Nandubhai Jayantibhai Sujnani Vs. Commissioner of Police delivered in Letters Patent Appeal No.2732 of 2010 on 28-3-2011.
7. He has further submitted that it is an established law that detention in case of solitary prohibition under PASA Act is against the law. According to him, except the solitary prohibition offence, there is no other material to indicate the alleged activity of petitioner is affecting or likely to affect adversely the maintenance of public order and hence, the order of detention is illegal and bad in law.
8. Learned Asstt. Government Pleader on the other hand has submitted that this petition is at the pre-execution stage without surrendering to the order of detention. Unless and until the petitioner surrenders, he would not be entitled to get the order as well as the grounds thereunder and the petitioner would not be entitled to copies of the same by filing the present petition. It is further submitted that it is for the Hon'ble Court to peruse the documents but the petitioner cannot insist the Hon'ble Court to place all the relevant materials relied upon by the detaining authority in passing the order of detention.
9. It is true that this petition is filed at a pre-execution stage. However, from the grounds of detention, it appears that a single offence under Sec.324 of IPC has been registered against the petitioner. The petitioner has no criminal antecedent. The incident in question between two groups, who were staying as neighbours, took place on petty issue and matter was settled between the parties. There is nothing on record to invoke the provisions of PASA against the petitioner. Still, however, the authorities, without application of mind, issued order of detention against the petitioner. On the basis of said solitary case, the respondent No.2 has come to the subjective satisfaction that the activities of the petitioner amounted to activities of a bootlegger which have disturbed the public order. It is to be noted that there is no other material on record which has necessitated the authority to pass the detention 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.
10. The petition is allowed. The impugned order of detention dated 21-1-2012 passed by the Police Commissioner, Rajkot City, passed against the petitioner is hereby quashed and set aside. Rule is made absolute accordingly. Direct service is permitted.
[M.D.SHAH,J.] radhan