ASHOKBHAI RAMANBHAI SOLANKI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under Article 226 of the Constitution of India, the petitioners challenge the legality and validity of the order of detention dated 7/13.6.2013 passed by the District Magistrate, Mehsana 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. Vide judgment and order dated 23.12.2013 passed in LPA No. 1492 of 2013, the Division Bench of this Court remanded the matter to decide afresh after calling upon the detention order and grounds for detention. Accordingly, after calling upon the detention order for Court's perusal, the present petition is taken up for final hearing.

(2.) BRIEF facts as arising from the petition are that an F.I.R. being Prohibition C.R. No. 71 of 2013 for the offences punishable under Sections 66(b), 65(a)(e), 116B(1)(b) and 81 of the Bombay Prohibition Act on 8.5.2013 before Kheralu police station. It is alleged in the FIR that on the basis of secret information, raid was conducted at the house of one Jitaji Ataji Thakor of village Mandali. At the time of raid, 5 to 6 persons sitting there started running away. The police had caught hold some persons and the petitioner has been shown to have run away from the place of incident. From the house in question, stock of contraband IMFL bottles were recovered. Some stock was also found from the vehicles parked there. The petitioner has learnt from reliable sources that on the basis of the prohibition offences, the respondent No. 4 had moved the proposal for passing the order of detention under the PASA Act and the District Magistrate, Mehsana without proper application of mind, passed the order of detention against the petitioner and therefore, this petition at pre -detention stage. The petitioner was arrested and thereafter, released on regular bail.

(3.) NO affidavit -in -reply is filed by the respondents. It is contended that the petition filed by the petitioner is not maintainable under the law. It is further stated that an order of detention is passed by the authority under the said Act against the petitioner. It is further stated that 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. It is further stated that 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. It is further stated that 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 '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. The respondent State has placed on record detention order No. MAG/DET/PASA/41/2013 dated 7/13.6.2013 passed by the District Magistrate, Mehsana for Court's perusal.