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 three FIRs being C.R.No.III-253 of 2011 at Bardoli Police Station dated 5-2-2011 seizing liquor worth Rs.3,99,000/-, C.R.No.III-480 of 2011 with Kadodara Police Station dated 21-6-2011 seizing liquor worth Rs.37,060/- and C.R.No.III-757 of 2011 with Kamrej Police Station dated 25-7-2011 seizing liquor worth Rs.30,000/- were registered against the petitioner under Bombay Prohibition Act. As the petitioner is having an apprehension that there is a likelihood of a detention order being passed against him by the respondent No.2, this petition is preferred at a pre- execution stage.
3. An affidavit in reply was filed by the respondent No.2 contending inter alia that as major quantity of liquor has been seized by different searches and as it appeared to the authority that the petitioner is a habitual offender, the authority did not have no other option but to pass the detention order to take prevention action against the petitioner to restrict the illegal activities being carried on by the petitioner and, therefore, detention order passed against the petitioner is legal and proper and hence, at the stage of pre-detention, the Court may not go into the merits of the orders passed by the authorities. The present petition is filed with misconception of facts and law at the pre-execution stage of detention order and hence, the present petition requires to be dismissed.
4. Heard learned counsel for the petitioner, Mr.H.R.Prajapati and learned Asstt. Government Pleader, Mrs.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.H.R.Prajapati, for the petitioner has submitted that in the four offences registered against the petitioner, he is not directly connected with any of them and based on the statement of co- accused, he has been falsely involved in the offences. It is further submitted that exercise of power of preventive detention solely relying upon prohibition offences is nothing but misuse of powers under the PASA Act. In this connection, he has relied on a judgment of this Court delivered on 28-3- 2011 in the case of Aartiben, W/o Nandubhai Jayantibhai Sujnani Vs. Commissioner of Police in Letters Patent Appeal No.2732 of 2010 in Special Civil Application No.9492 of 2010. It is further 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 Vs. State of Maharashtra reported in (2008) 16 SCC page 14. It is further submitted that registration of prohibition offence themselves does not give a valid reason for detaining authority to arrive at subjective satisfaction tha the alleged activities come within the purview of 'public order'. It is further submitted that except so-called registration of 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. It is therefore requested that the order of detention may be quashed and set aside.
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. It is further submitted that it is for the Hon'ble Court to peruse the documents.
8. This Court has gone through the order of detention passed by the respondent No.2 authority and along with the relevant papers. It appears from the grounds of detention that number of offences were registered against the petitioner. In 2011, three offences were registered and one offence is creating forged solvency certificate and other offences are of selling lowest quality of liquor which is injuries to the health of public. On perusal of the original papers relating to the cases, the detailing authority is satisfied that the present petitioner is a habitual offender in such kind of offences. There are statements of various witnesses recorded by the police authority against the petitioner. On the basis of registration of offences registered against the petitioner and the statements of witnesses, the respondent No.2 has come to the subjective satisfaction that the activities of the petitioner amounted to disturbance of the public order and since there is sufficient material on record to show that the petitioner is carrying on said illegal activities, the detaining authority was of the view that the petitioner is required to be detained. Since he is habitually indulging in said illegal activities of selling lowest quality of liquor since long, to prevent him from entering into such activities in future, he is required to be detained. Hence, no case is made out and the petition is required to be rejected.
9. This Court has gone through the decision of the Hon'ble Apex Court in Dipak Bajaj (supra). However, said judgment would not be applicable in the present case of the petitioner as, in the present case, the detaining authority has come to a definite finding that detenu is a babitual offender of selling lowest quality of liquor and health of the public is largely affected by the said sale and hence, in order to prevent him from doing the said illegality activity, the order of detention order has been passed. In view of the above, since the order of detention has been passed by the detaining authority with adequate grounds for passing the said order, this petition at the pre-execution stage cannot be entertained.
10. Hence, this petition is rejected. Rule is discharged.
Ad-interim relief stands rejected.
[M.D.SHAH,J.] radhan Further Order After pronouncement of the aforesaid judgment and order, learned advocate, Mr.Prajapati, has requested for extension of ad-interim relief granted earlier to approach the higher forum. However, considering the facts and circumstances of the case, request is rejected.
[M.D.SHAH,J.] radhan