KHANDUBHAI BHANABHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under Article 226 of the Constitution of India, the petitioner challenges the legality and validity of the order of detention dated 31.05.2012 passed by the respondent No.2 at the instance of respondent No.3 in purported exercise of powers under Sub -Section (2) of Section 3 of the Gujarat Prevention of Anti -Social Activities Act, 1985 (for short, the 'Act') at pre -detention stage.

(2.) BRIEF facts as arising from the petition are that an F.I.R. being C.R.No.III -5453 of 2011 for the offences punishable under Sections 66(1)(b), 65(a)(e), 81 and 116(b) of the Bombay Prohibition Act on 17.12.2011 before Dharampur police station. It is alleged in the F.I.R. that on the basis of secrete information, raid was conducted at the place of one Mr.Shyambhai Patel. At the time of raid, seeing of the police, two persons tried to run away. One was caught hold by the raiding party and another person was run away. The person, who was caught hold, identified himself as Mr.Shyambhai Patel and from the car, stock of IMFL bottles was found out. Upon interrogation, the accused said to have stated before the Investigation Officer that the said stock was provided by one Dushyant Babubhai Patel and the present petitioner and the same was to be delivered to one person namely, Harijans of Mahuvas, Taluka: Vansada. According to the petitioner, he was arrested by respondent No.3, remand was granted by the learned Magistrate and he was released on bail on 11.04.2012.

(3.) AN affidavit -in -reply is filed by the respondent No.2 contending that the petition filed by the petitioner is not maintainable under the law. In para 9 of the said reply, it is stated by the respondent No.2 that no order of detention is passed by the authority under the said Act against the petitioner. According to the respondent No.2, the petitioner has preferred this petition at a pre -mature stage apprehending that the respondent authorities would invoke the provisions of the said Act against the petitioner. According to the respondent No.2, the present petition has been filed with misconception of facts and law at the stage of pre -execution of detention order. It was contended that the petitioner was required to surrender before challenging the order of detention which is not yet served to him. It was further contended that since the detaining authority on a subjective satisfaction, after perusal of relevant materials placed before it including the documents relating to one offence registered against the petitioner that the activities of the petitioner were prejudicial to the maintenance of public order, the order of detention was passed against the petitioner. According to the respondent No.2, the detaining authority, after carefully considering, pursuing, examining and applying its mind to all the relevant materials placed before it as well as legal provisions applicable to the same, was subjectively satisfied that the petitioner is a 'bootlegger' person as defined under Section 2(b) of the Act and hence, passed the order of detention against the petitioner to prevent him from acting in any manner prejudicial to the maintenance of public order. Along with the affidavit -in -reply filed on behalf of the respondent No.2, the State has placed on record detention order No.DCB/MAG/PASA/83/2012 dated 31.05.2012 passed by the District Magistrate, Valsad.