VIJAYBHAI K. THAKORE 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 4.1.2014 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. Brief facts as arising from the petition are that an F.I.R. being C.R. No. III -1159 of 2013 for the offences punishable under Sections 66(1)b, 65(a)(e), 81 and 108 of the Bombay Prohibition Act on 25.12.2013 before City Police Station, Vadodara. It is alleged in the F.I.R. that on the basis of information, the police raided at the godown of the petitioner, where liquors of different brands were found, but the petitioner was not there at that time. While recording the statement of one Mr. Sanjay Kahar, it was come to the notice of the police that the said godown is of the petitioner. The petitioner was apprehending that the Police Commissioner may detain the petitioner under the PASA, as the petitioner has been falsely implicated in the offence due to political and business rivalry. Thereafter, the petitioner was arrested and he was released on bail vide order dated 3.1.2014 passed by the learned Judicial Magistrate First Class, Vadodara.

(2.) UPON serious apprehension that the order of detention has already been passed against the petitioner, the present petition is preferred.

(3.) LEARNED advocate for the petitioner has submitted that the petition in the present form is maintainable and tenable both on law as well as on facts to substantively challenge the order of detention at pre -execution stage in view of the decision of the Hon'ble Apex Court in the case of Deepak Bajaj v. State of Maharashtra and another reported in : (2008)16 SCC 14. According to him, the Hon'ble Apex Court, considering its earlier decision in the case of Additional Secretary to the Government of India and others v. Smt. Alka Subhash Gadia and another reported in : 1992 Supp.(1) SCC 496 and the objections taken at the pre -execution stage by the other side therein, on the identical ground, has held that "we are of the opinion that the five grounds mentioned therein on which the Court can set -aside the detention order at pre execution stage are only illustrative not exhaustive". Learned advocate for the petitioner also relied upon the decision of the Division Bench of this Court in the case of Mahendrasinh Mangalsinh Jadeja v. State of Gujarat and other delivered in Letters Patent Appeal No. 1495 of 2013 on 24.12.2013. Lastly, he has submitted that it is an established law that the detention in case of solitary prohibition offence registered against detenu under the Act, is against the law. According to him, except solitary prohibition offence, there is no material to indicate that the alleged activity of the petitioner is affecting or likely to affect adversely to the maintenance of public order and hence, the order of detention is illegal and bad in law.