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, District Magistrate, Office of District Magistrate, Nanpura, Surat.
2. Heard learned counsel for the petitioner, Mr.
H.R. Prajapati and learned Assistant Government Pleader, Mr. Rashesh Rindani for the respondents.
3. It is submitted by learned advocate, Mr. Prajapati that relying upon the solitary prohibition offence, orders of detention were passed against co-accused Sajid Hasir Dosani Shaikh and Jitendrabhai Jagannath Fatumal Sharma under the PASA Act by the respondent No.2 in the year 2011. Their orders of detention were not approved by the Advisory Board and therefore, their detention orders have been revoked by respondent No.1.
According to him, relying on solitary prohibition offence, the respondent No.2 has passed order of detention against the petitioner. It is submitted that exercise of power of preventive detention under PASA Act solely relying upon prohibition offence is nothing but misuse of powers under the PASA Act. In support of his submissions he has relied on the following judgments of this Court :-
Judgment dated 20.01.2009 passed in Special Civil Application No.13993/2008 (Coram : Hon'ble Ms. Justice H.N. Devani) and Judgment by this Court dated 17.01.2012 passed in Special Civil Application No.14366/2011 whereby reference was made to the judgment passed by the Hon'ble Apex Court in the case of Alpesh Navinchandra Shah v.
“54. In the instant case, the petitioner's brother has already been released on the ground there was no sufficient cause for the detention of the detenu under Section 3(1) of the Act. The Government also accordingly revoked the detention order issued against him and the Government of Maharashtra, after considering the report of the Advisory Board and the material on record and in exercise of the powers conferred by Section 8(f) of the COFEPOSA Act revoked the aforesaid detention order and further directed that Kamlesh Navinchandra Shah be released forthwith on receipt of the said order dated 05.06.2006. In our opinion, the petitioner before us who is also similarly placed and who has also paid the customs duty etc. pursuant to the order of the Settlement Commission and got the unconditional immunity by the Settlement Commission is entitled to the same treatment. At the time of hearing, it is pointed out that the petitioner has ceased his activities in the field of import or export and has already paid the tax with penalty as demanded by the authority and there is nothing on record that the appellant has indulged in any such activity in the recent past. It is settled by law that the purpose of passing the detention order is to prevent the detenu from continuing his prejudicial activity but not to punish him.
55. Considering the peculiar facts and circumstances of the case, no purpose will be served by continuing the detention order and we, therefore, allow the writ petition and quash and set aside the detention order bearing No. PSA 1204/21(2)/SPL-3(A) dated 12.01.2005.”
4. The aforesaid submission made by learned Advocate has not been disputed by learned Assistant Government Pleader.
5. Hence, in view of the principle laid down by the Apex Court in the above reported judgment, the order of detention would not be sustained.
6. In the result, the petition is allowed. The order of detention prepared and sought to be executed against the detenue is quashed and set aside. Rule is made absolute, accordingly. Direct Service is permitted.
SD/-
(M.D. Shah, J.) Caroline