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 that in pursuance of an FIR being C.R.No.III-519 of 2011 registered with Mahidharpura Police Station, for the offences under Secs.66(1)(B), 65(A)(E), 116(1)(B), 81, 98 and 99 under the Prohibition Act on 25-9-2011 alleging that 373 bottles of liquor of various brands and 12 beer bottles were seized. Based on this offence, order of detention has been passed against the petitioner on 14- 12-2011. Hence, this petition.
3. Heard learned counsel for the petitioner, Mr.Premal S.Rachh and learned Asstt. Government Pleader, Mrs.Krina Calla for the respondents.
4. Rule. Learned AGP, Mrs.Krina Calla, waives service of notice of rule for the respondents.
5. Learned counsel, Mr.Premal Rachh, 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 Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad City and another reported in 1989 Supp(1)Supreme Court Cases page 322. It is 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.
6. 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.
7. It is true that this petition is filed at a pre-execution stage. However, from the grounds of detention, it appears that an offence being C.R.No.III-519 of 2011 has been registered against the petitioner with Mahidharpura Police Station, alleging that 373 bottles of liquor of various brands and 12 beer bottles were found from the possession of the petitioner. It appears that on the basis of said solitary case under the Bombay Prohibition Act, 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 to show that the petitioner is carrying on activities of selling country made liquor which is harmful to the health of the public. In the case of Lallan Prasad Chunnilal Yadav (supra), it was held that the cases wherein the detention order passed on the basis of registration of offences under Bombay Prohibition Act for recovery of contraband liquor fall under the maintenance of “law and order” and not “public order”.
8. Applying the ratio of the above decisions, it is clear 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”.
9. 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.
10. The petition is allowed. The impugned order of detention bearing No.PCB/PASA/DTN/406/2011 dated 14-12-2011 passed by the Police Commissioner, Surat City, against the petitioner is hereby quashed and set aside. Rule is made absolute accordingly. Direct service is permitted.
[M.D.SHAH,J.] radhan