BAROT SANDEEP KUMAR KISHOREBHAI 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 20.12.2013 passed by the respondent No. 2 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 I.C.R. No. 71 of 2013 for the offences punishable under Sections 406, 420, 447, 465, 467, 468, 471 and 120B of the Indian Penal Code came to be registered on 18.05.2013 before Mehsana City 'A' Division police station. It is alleged that essentially, a civil dispute has been sought to be converted into criminal offence. It is alleged that the aforesaid offences have been committed way back in the year 2009 but however, the complaint has been lodged in the year 2013 and no satisfactory reason for delay has been assigned. According to the petitioner he was arrested and released[on bail on 30.10.2013. It also appears that co -accused of the same F.I.R. has also been released on bail by this Court vide order dated 23.10.2013 passed in Criminal Misc. Application No. 17095 of 2013.

(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 the said reply, it is stated by the respondent No. 2 that an 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 inspite of the efforts made by the Police Inspector, Mehsana 'A' Division police station, Mehsana because the petitioner is avoiding the execution of the order of detention. 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 'property grabber' as defined under Section 2(h) 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. In support of the above submissions, the respondent No. 2 has cited various decisions of the Hon'ble Apex Court in the affidavit -in -reply. Along with the affidavit -in -reply filed on behalf of the respondent No. 2, the State has placed on record detention order No. MAG/DET/PASA/81/2013 dated 20.12.2013 passed by the District Magistrate, Mehsana for Court's perusal.