By way of the present petition, the petitioner has requested to quash and set aside the dated 23.11.2012 order passed by respondent No.2 i.e. District Magistrate, Mehsana, by which, the petitioner is declared as bootlegger . It is the case of the petitioner that from reliable sources he came to know that one offence is registered against him under the Bombay Prohibition Act by the authority and he is likely to be detained. It is the case of the petitioner that he has been released either on anticipatory bail or regular bail in the said offence and, therefore, he could not be treated as a bootlegger under the provisions of Gujarat Prevention and Anti Social Activities Act, 1985.
2 Pursuant to the notice issued by this Court on 14.12.2012, today, learned AGP Ms. Amita Shah, has shown an order dated 23.11.2012 passed by respondent No.2 i.e. the District Magistrate, Mehsana,, by which, the District Magistrate has passed order of detention exercising his powers under Section 3 of the PASA Act considering the offence registered against the present petitioner.
3. The petitioner is yet not detained pursuant to the order of detention passed by respondent No.2 and therefore, this petition is at pre-execution of the detention order stage.
4 Mr. A.G.
Joshi, learned Advocate, appearing for the petitioner has submitted that by catena of decisions of this Court, it has been held that only registering offence under the provisions of the Bombay Prohibition Act, a person cannot be treated as bootlegger . He has further submitted that the Apex Court has also held that if it is found from the record that the case lodged for law and order situation and not with regard to maintenance of the public order, the order of detention is required to be quashed and set aside. He further submitted considering the petitions at pre-execution stage, it has been held by the Apex Court in Para 15 in the case of Deepak Bajaj Vs. State of Maharashtra reported in (2008) 16 SCC 14, the order of detention can be quashed at pre-execution stage and requested to quash the petition.
5 I have gone through the detention order dated 23.11.2012 passed by the authority. It appears that the authority has relied upon the several statements of witnesses and have also gone through the judgments relied upon by the learned advocate for the petitioner i.e. (i) Deepak Bajaj (Supra), (ii) Additional Secretary To The Government of India Vs. Smt. Alka Subhas Gadia reported in 1992Supp (1) SCC 496,
(iii) State of Maharashtra V. Bhaurao Punjabrao Gawande reported in (2008) 3 SCC 613 and (iv) Subhas Popatlal Dave Vs. Union of India reported in 2012(6) Scale 367.
6. Para 15 of the case of Deepak Bajaj (Supra) reads as under:
15. If a person against a preventive detention order has been passed comes to Court at the pre-execution stage and satisfies the Court that the detention order is clearly illegal, there is no reason why the Court should stay its hands and compel the petitioner to go to jail even though he is bound to be released subsequently (since the detention order was illegal). As already mentioned above, the liberty of a person is a precious fundamental right under Art. 21 of the Constitution and should not be lightly transgressed. Hence, in our opinion, Alka Sukhas Gadia case cannot be construed to mean that the five grounds mentioned therein for quashing the detention order at the pre-execution stage are exhaustive.
7 In the last judgment i.e. Subhas Popatlal Dave Vs. Union of India (Supra), the Apex court has, after considering the cases of Alka Subhas Gadia , Deepak Bajaj and Bhaurao (Supra), held in Para 31 as under:
31. In the light of the above, let the various Special Leave Petitions and the Writ Petitions be listed for final hearing and disposal on 7th August, 2012 at 3.00 p.m. This Bench be reconstituted on the said date, for the aforesaid purpose. 9. As per the last information, the Apex Court is in midst of hearing of the matters and the next date of hearing of the matters is on 31.1.2013.
8. Considering the above aspect and the merits of the case and considering the different ratios laid down by the Hon ble Apex Court in the case of (i) District Collector, Ananthapur Vs. V. Laxman reported in (2005) 3 SCC 663; (ii) Amanulla Khan Kudeatalla Khan Pathan V/s State of Gujarat reported in AIR 1999 SC 2197; and (iii) Mustakmiya Jabbarmiya Shaikh Vs. M.M.Mehta, reported in (1995) 3 SCC 237 as well as case of Ashokbhai Jivraj @ Jivabhai Solanki Vs. Police Commissioner, Surat reported in 2001 (1) GLH 393 and having considered the decision of the Hon ble Apex Court in the case of Ram Manohar Lohia Vs. State of Bihar reported in AIR 1966 SC 740, prima facie, I am of the opinion that, at this stage, it would be desirable to stay the implementation, execution and operation of the detention order dated 23.11.2012. Hence, the implementation of detention order dated 23.11.2012 is stayed till next date of hearing.
9. Rule returnable on 15.2.2013. Learned AGP Ms. Amita Shah, waives service of rule on behalf of respondent No.1. Direct service is permitted.
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