KAILASH GOVINDRAM RATHI 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 26.7.2011 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 the judgment and order dated 23.12.2013 passed in Letters Paten Appeal No. 1162 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 -255 of 2010 for the offences punishable under Sections 66(1)(b), 65(a)(e), 81 and 116(2) of the Bombay Prohibition Act on 27.4.2010 before Palsana police station, Surat. It is alleged in the F.I.R. that on 27.4.2010, the police was patrolling, at that time, on the basis of secrete information, the police reached at Dastan Crossing, where the police prevented the truck MH -39 -C -466 contained foreign liquor. At the time, seeing of the police, two persons tried to run away. Upon interrogation, the driver of the said truck said to have stated before the Investigation Officer that the said stock was provided by the present petitioner. According to the petitioner, the police authorities has falsely implicated the name of the petitioner in the offence. The petitioner was arrested in pursuance to the said FIR and he was released on bail on 25.2.2011.

(3.) IT appears that the respondent State has not filed affidavit -in -reply, therefore, averments and contentions raised in the petition remained uncontroverted and unchallenged. However, it is contended that the petition filed by the petitioner is not maintainable under the law. It is contended that an order of detention is passed by the authority under the said Act against the petitioner. It is contended 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 contended that the present petition has been filed with misconception of facts and law at the stage of pre -execution of detention order. It is contended that the petitioner was required to surrender before challenging the order of detention which is not yet served to him. It is 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 contended 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 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. The State has placed on record detention order No. PASA/33/2011 dated 26.7.2011 passed by the District Magistrate, Surat, for Court's perusal.