MAHADEVBHAI KARMIJI RABARI 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 7/11.6.2013 passed by the respondent No. 2 at the instance of 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.

(2.) BRIEF facts as arising from the petition are that an F.I.R. being C.R. No. III -148 of 2012 for the offences punishable under Sections 66(b), 65(a)(e) and 116(b) of the Bombay Prohibition Act on 15.10.2012 before Bahucharaji police station and C.R. No. III -71 of 2013 for the offences punishable under Sections 661(b), 65(a)(e), 81 and 116(b) of the Bombay Prohibition Act on 8.5.2013 before Bahucharaji 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 one of them was the petitioner. 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 solitary prohibition offence, the respondent No. 4 had moved the proposal for passing the order of detention under the PASA Act and the respondent No. 2 without proper application of mind, passed the order of detention against the petitioner. According to the petitioner, he was arrested and released on bail on 29.5.2013.

(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 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. MAG/DET/PASA/36/2013 dated 7/11.6.2013 passed by the District Magistrate, Valsad for Court's perusal.