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 the provisions of 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- District Magistrate, Navsari, against the petitioner on 21-9-2011 and hence, necessary amendment was sought for and this Court vide order dated 2-12-2011 permitted necessary amendments to be carried out in the prayer clause.
3. The brief facts as arising from the petition are that an FIR being C.R.No.III-19 of 2011 dated 6-1-2011 was registered against the petitioner with Navsari Rural Police Station for the offences punishable under Secs.66(b), 65(a)(e), 116(2) and 81 of Bombay Prohibition Act alleging that based on the prior information, a watch was kept and when two cars of the informed description came, they were stopped and as the drivers of those vehicles stated that Indian made foreign liquor bottles carried in the said vehicles were to be delivered at the place of petitioner, the petitioner was arrested. The petitioner was released on bail by the Court. After his release on bail, the respondent No.2 issued detention order under PASA Act against the petitioner as well as against other persons. On having come to know that of the same, this petition is preferred.
4. 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.. The efforts made by the PI, LCB, Navsari, to serve at the residence, relatives and business and other places also came to be futile, however, it was reported that the petitioner 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 as per settled legal position of law laid down by the Hon'ble Supreme Court of India. 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.
5. Heard learned counsel for the petitioner, Mr.H.R.Prajapati learned Asstt. Government Pleader, Mrs.Krina Calla for the respondents.
6. Learned counsel, Mr.Prajapati, 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 CR C.R.No.III-19 of 2011 dated 6-1-2011 under the Prohibition Act has been registered against the petitioner with Navsari Rural Police Station. This fact has not been controverted by the detaining authority in the affidavit filed in the present matter. It also 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. Therefore, this Court is of the opinion that the solitary case registered under the Bombay Prohibition Act against the petitioner alone cannot be said to be sufficient enough to arrive at subjective satisfaction to the effect that the alleged activities of the petitioner are prejudicial to the public order or lead to disturbance of public order. There has to be nexus and link for such activities with disturbance of the public order. On careful perusal of the material available on record and the ratio laid down by the Apex Court in the case of Dipak Bajaj (supra) and the judgment dated 28.3.2011 passed by a Division Bench of this Court [Coram: S.J. Mukhopadhaya C.J. & J.B. Pardiwala, J].] in Letters Patent Appeal No2732 of 2010 in Special Civil Application No.9492 of 2010 (Aartiben vs. Commissioner of Police), this Court is of the opinion that the activities of the petitioner cannot be said to be in any manner prejudicial to 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 dated 21-9-2011 passed by the District Magistrate, Navsari, respondent No.2 herein, against the petitioner is hereby quashed and set aside. Rule is made absolute accordingly. Direct service is permitted.
[M.D.SHAH,J.] radhan