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 under Sec.3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as 'the PASA' for short).
2. It may be noted that during the pendency of this petition, detention order has been passed by the respondent No.2- Commissioner of Police, Rajkot City, on 28-12-2011 against the petitioner.
3. The brief facts as arising from the petition are that three Criminal Cases being C.R.No.I-145 of 2010 dated 23-10- 2010 for the offences punishable under Secs.406, 420, 467, 468, 471, 120B, 34 and 114 of IPC, C.R.No.I-140 of 2011 dated 25-6-2011 for the offences punishable under Secs.406, 420, 419, 465, 467, 468, 471, 120B of IPC and C.R.No.I-29 of 2011 dated 15-4-2011 for the offences punishable under Secs.447, 200, 385, 406, 420, 423, 465, 468, 471 and 120B of IPC were registered against the petitioner before Rajkot Taluka Police Station for creating alleged power of attorney and grabbing the land illegally. The petitioner was arrested and was released on bail in all these offences. After his release on bail, as the respondent No.2 issued detention order under PASA Act on 28-12-2011 against the petitioner, this petition is preferred.
4. Heard learned counsel for the petitioner, Mr.Sunil L.Mehta and learned Asstt. Government Pleader, Ms.Krina Calla for the respondents.
5. Rule. Learned AGP, Mrs.Krina Calla, waives service of notice of rule for the respondents.
6. Learned counsel, Mr.Sunil Mehta, 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. According to him, there is no material to indicate that 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.
7. 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.
8. It is true that this petition is filed at a pre-execution stage. However, from the grounds of detention, it appears that three offences bearing C.R.No.I-145 of 2010 dated 23-10-2010 for the offences punishable under Secs.406, 420, 467, 468, 471, 120B, 34 and 114 of IPC, C.R.No.I-140 of 2011 dated 25-6-2011 for the offences punishable under Secs.406, 420, 419, 465, 467, 468, 471, 120B of IPC and C.R.No.I-29 of 2011 dated 15-4- 2011 for the offences punishable under Secs.447, 200, 385, 406, 420, 423, 465, 468, 471 and 120B of IPC were registered against the petitioner before Rajkot Taluka Police Station for creating alleged power of attorney and grabbing the land illegally. It appears that on the basis of said cases, the respondent No.2 has come to the subjective satisfaction that the activities of the petitioner amounted to disturbing 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 illegal grabbing of land. 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”.
9. 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”.
10. 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.
11. The petition is allowed. The impugned order dated 28- 12-2011 passed by the Police Commissioner, Rajkot City, against the petitioner is hereby quashed and set aside. Rule is made absolute accordingly. Direct service is permitted.
[M.D.SHAH,J.] radhan