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 set out in the petition are that the petitioner was detained by police on 4-10-2011 for interrogation. Thereafter, on 2-10-2011, cousin brother of petitioner Shri Kamlesh has been dragged by the police from the shop and on 4-10-2011, the police asked the petitioner to give 2000 kg of copper as cases of 2009, 2010 and 2011 are undetected. Since the petitioner was not being released, brother of the petitioner gave an application on 15-10-2011 before the Surat District (Rural) Police Officer with regard to illegal detention of the petitioner. The Police Inspector, Kosamba Police Station, requested learned Magistrate for addition of Secs.413 and 379 of IPC in the undetected cases of 2009 in addition to Secs.136 and 139 of Indian Electricity Act. The police authorities showed the petitioner as arrested on 18-10-2011 at 12.15 hrs. in 26 similar other undetected cases which were lodged against unknown persons. Thereafter, cousin brother of the petitioner Shri Kamlesh was booked under PASA vide order dated 31-12- 2011 by the District Magistrate, Surat. Since the petitioner is having an apprehension of the detention order being passed against him, this petition is preferred at a pre-execution stage.
3. Heard learned counsel for the petitioner, Mr.E.E.Saiyed 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.E.E.Saiyed, 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 the decision of 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 goods knowing fully well. According to him, the petitioner has not committed any offence of theft, however, the petitioner has purchased the stolen goods from other accused person who committed the theft. It is further submitted that there is no material with the detaining authority 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 at the pre-execution stage without surrendering to the order of detention is untenable.
7. It is true that this petition is filed at a pre-execution stage. However, the only allegation against the petitioner appears to be that he knowing fully well purchased the stolen goods from other accused persons who received the said goods by committing theft. It is also pertinent to note that the alleged offences were registered in 2009 and when accused was arrested, he was shown as having involved in more than 30 cases. It is to be noted that there is no other material on record to show that the petitioner is carrying on illegal activities. 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”.
8. 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.
9. The petition is allowed. The order of detention proposed to be passed by the respondent No.2 against the petitioner and approved by the respondent No.3 is hereby quashed and set aside. Rule is made absolute accordingly. Direct service is permitted.
[M.D.SHAH,J.] radhan