JOGINDRA SHARMA 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 15.9.2011 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. Vide judgment and order dated 23.12.2013 passed in LPA No. 1305 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 C.R. No. III -5009 of 2010 for the offences punishable under Sections 66(b), 65(a)(e), 81 and 116(1)(b) of the Bombay Prohibition Act on 12.1.2010 before DCB police station and C.R. No. III -5045 of 2010 for the offences punishable under Sections 66(1)(b), 65(a)(e), 81 and 116(1) (b) of the Bombay Prohibition Act on 26.9.2010 before DCB police station. It is stated in the petition that the petitioner is retired officer of Army and has been residing at Chandigarh since decades. The petitioner was picked up by the police officer of Gujarat Police without following due process of law and therefore, wife of the petitioner has lodged complaint in respect thereof at Chandigarh. It is further submitted in the complaint that though the petitioner was nabbed, he was shown as having arrested after a period of 3 days by the Gujarat Police after bringing him in Gujarat.

(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. 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. PCB/DTN/PASA/629/2011 dated 15.9.2011 passed by the respondent No. 2 for Court's perusal.