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-Police Commissioner, Rajkot City, Rajkot.
Heard learned counsel for the petitioner, Mr.A.M.Dagli and learned Asstt. Government Pleader, Mrs.Krina Calla for the respondents.
Rule.
Mrs.Krina Calla, learned AGP waives service of notice of rule on behalf of the respondents.
It is submitted by learned advocate, Mr.Dagli that detention order passed against the co-detenue has been revoked by the Advisory Board. According to him, the petitioner is similarly situated with the said co-detenue and since the order of detention passed against co-detenue has been revoked, petitioner is entitled to be released even at a pre-execution stage.
The aforesaid submission made by learned advocate has not been disputed by learned AGP.
It appears that order of detention passed against the co-detenue was revoked by the Home Department of State of Gujarat. It has been held by the Hon'ble Apex Court in the case of Alpesh Navinchandra Shah v. State of Maharashtra and Ors. reported in AIR 2007 SC (Supp) 570 as under:
"54.
In the instant case, the petitioner's brother has already been released on the ground there was no sufficient cause for the detention of the detenu under Section 3(1) of the Act. The Government also accordingly revoked the detention order issued against him and the Government of Maharashtra, after considering the report of the Advisory Board and the material on record and in exercise of the powers conferred by Section 8(f) of the COFEPOSA Act revoked the aforesaid detention order and further directed that Kamlesh Navinchandra Shah be released forthwith on receipt of the said order dated 05.06.2006. In our opinion, the petitioner before us who is also similarly placed and who has also paid the customs duty etc. pursuant to the order of the Settlement Commission and got the unconditional immunity by the Settlement Commission is entitled to the same treatment. At the time of hearing, it is pointed out that the petitioner has ceased his activities in the field of import or export and has already paid the tax with penalty as demanded by the authority and there is nothing on record that the appellant has indulged in any such activity in the recent past. It is settled by law that the purpose of passing the detention order is to prevent the detenu from continuing his prejudicial activity but not to punish him.
55. Considering the peculiar facts and circumstances of the case, no purpose will be served by continuing the detention order and we, therefore, allow the writ petition and quash and set aside the detention order bearing No. PSA 1204/21(2)/SPL-3(A) dated 12.01.2005."
Hence, in view of the principle laid down by the Apex Court in the above reported judgment, this petition at pre-execution stage deserves to be allowed by quashing and setting aside the order of detention proposed to be served upon the petitioner.
In view of the above, the petition is allowed. The impugned order of dated 23-9-2011 prepared and sought to be served on the petitioner by the respondent No.2 is hereby quashed and set aside. Rule is made absolute accordingly. Direct service is permitted.
[M.D.SHAH,J.] radhan Top