NAYAN @ APPU SURESHCHANDRA JARIWALA 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 26.03.2013 passed by the respondent No. 2 in purported exercise of powers under Sub -Section (2) of Section 3 of the Gujarat Prevention of Antisocial Activities Act, 1985 (for short, the 'Act') at pre -detention stage. Vide the judgment and order dated 24.12.2013 passed in Letters Patent Appeal No. 1150 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 III -C.R. No. 5020 of 2013 for the offences punishable under Sections 465, 469, 471 and 473 of the Indian Penal Code and Sections 66(1)B, 65EA, 116(1)B, 81, 98 and 99 of the Bombay Prohibition Act came to be registered before D.C.B. police station, Surat. It is submitted that in the F.I.R., the petitioner is shown to be the absconding accused No. 4. It is alleged in the F.I.R. that the police received information that in one i -20 car, persons of accused -Mr. Vimal Andhalo, are about to come at 3:00 pm. at Simada road and on the basis of that information, the said car was intercepted and two persons namely, Mr. Faruk and Mr. Jignesh came to be arrested, panchnama was prepared and statements of the arrested accused persons came to be taken by the police. It is submitted that role to some extent came to be attributed to the other co -accused named in the F.I.R. but however, not a single allegation is there in the entire F.I.R. According to the petitioner, he was arrested and released on bail on 23.01.2013.

(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. It was 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. It is submitted that after release of the petitioner on bail, the sponsoring authority, after collecting the material, prepared a proposal and sent to the office and on receipt of the same along with the material for detention of the petitioner, the detaining authority found the same to be sufficient to detain the petitioner. According to the respondent No. 2, the detention order was sent for execution to the concerned police authorities but the petitioner was absconding to evade the service/execution of the order of detention and inspite of the best efforts on the part of the police, they could not detain the petitioner and execute the order of detention to the petitioner. In support of the above submissions, the respondent No. 2 has cited various decisions of the Hon'ble Apex Court in the said 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. PCB/PASA/DTN/106/2013 dated 26.03.2013 passed by the Police Commissioner, Surat City for Court's perusal.