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 filing of an FIR being C.R.No.I- Prohibition 359/2011 with Gandhigram Police Station, Rajkot City, a search was conducted at the house of petitioner when 21 bottles of Indian made foreign liquor were seized. The petitioner was arrested and was released on bail by the learned Judicial Magistrate (First Class), Rajkot. After his release on bail, the respondent No.2 issued detention orders under PASA Act against the petitioner as well as his son Badhabhai Ravjibhai Jafda. His son has been detailed and sent to District Jail, Mehsana. On having come to know that the respondent No.2 has issued detention order No.PCB.DTN/PASA/328/2011 dated 6-11-2011 against him, 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 6-11-2011. The efforts made to serve at the residential address at Bhartinagar Sheri No.2, Khodiyar Krupa, Gandhigarm, Rajkot, also came to be futile, however, it was reported that after releasing on bail on 22-10-2011 in the offence registered against the petitioner, 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.Tejas Barot and learned Asstt. Government Pleader, Mr.J.K.Shah for the respondents.
5. Rule. Learned AGP, Mr.J.K.Shah, waives service of notice of rule for the respondents.
6. Learned counsel, Mr.Barot, 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 being Prohibition CR No.359 of 2011 dated 21-10-2011 has been registered at Gandhigram Police Station, Rajkot City against the petitioner wherein it is alleged that 21 bottles of Indian made foreign liquor was found from the house 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 Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Surat [(2001) (1) GLH 393), having considered the decision of the Hon'ble Apex Court in the case of Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740), this Court held that the cases wherein the detention order passed on the basis of the statements of the witnesses fall under the maintenance of “law and order” and not “public order”.
10. 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”.
11. 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.
12. The petition is allowed. The impugned order of detention bearing No.PCB/DTN/PASA/328/2011 dated 6-11-2011 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