1. This petition is filed praying for quashing and setting aside the order of detention at pre-detention stage passed against the petitioner under the PASA Act by respondent authorities in purported exercise of powers under sub-section (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as 'the PASA' for short).
2. The brief facts as arising from the petition are that an FIR was registered against the petitioner under Sections 66(b), 65(a)(e), 116(b) and 81 of the Bombay Prohibition Act being C.R.No.111-5006 of 2012. That the petitioner was arrested in connection with the said offence and remand was granted by the learned Judicial Magistrate, First Class, Karpada and his bail application was rejected.
3. An affidavit-in-reply has been filed on behalf of respondent No.3 and denied all the contentions of the petition.
4. Heard learned Counsel Mr.Prajapati for the petitioner and learned Asstt. Government Pleader, Mr.Nanavati for the respondents.
5. Rule.
Learned AGP, Mr.Nanavati, waives service of notice of rule for the respondents.
6. It is true that this petition is filed at a pre-execution stage. However, from the grounds of detention, it appears that the present applicant is accused of unloading illegal goods of liquor which was admittedly in the possession of the co-accused. There are no criminal antecedents of the petitioner. Except this allegation, nothing has come out on record which shows that his activities are of such nature which are required to be stopped and hence, the subjective satisfaction arrived at by the detaining authority against the petitioner is said to have been vitiated.
7. This Court, 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), 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".
8. 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 his case would not fall within the category of threat to "public order". In the opinion of this Court, the activities of this petitioner can, by no stretch of imagination, 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 therefore the petition is required to be allowed.
9. The petition is allowed. The order of detention at pre-detention stage passed against the petitioner under the PASA Act by respondent authorities in purported exercise of powers under sub-section (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 is hereby quashed and set aside. Rule is made absolute accordingly. Direct service is permitted.
[M.D.SHAH,J.] srilatha Top