MAHESHBHAI KALABHAI SOLANKI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS petition challenges enforcement, implementation and execution of the order of detention dated 21-8-2009 passed against the petitioner by the respondent No. 2 under the Gujarat Prevention of Anti-Social Activities Act, 1985.

(2.) THE facts in brief as set out in the petition by the petitioner are that the petitioner has been carrying on business of colour and chemical products in the name and style of M/s A. M. Chemicals with Shri Milapbhai Pravinbhai Shah by oral partnership. They were authorized by M/s Gujarat Foundry Flux Company for lifting of "recovered methanol" from M/s Cadila Healthcare Ltd. , Dabasa, Baroda, as is clear from copy of purchase order dated 20-1-2009 of Gujarat Foundry Flux Company. The petitioner and his friend Shri Milapbhai Pravinbhai Shah lifted the materials from M/s Cadila Healthcare Ltd. by preparing invoice in the name of M/s Gujarat Foundry Flux Company. According to the petitioner, companies purchasing the stock and selling the stock of recovered methanol are the license holders under the Gujarat Methyl Alcohol Rules, 1981. Rule 12 (2) of the said Rules states that the licensee shall carry on business either personally or by agent or servant duly authorized by him in this behalf. The petitioner was authorized by M/s Gujarat Foundry Flux Company to lift the stock of recovered methanol and its byproduct from M/s Cadila Healthcare Ltd. and Kairav Chemicals Ltd. Accordingly, he purchased stocks of 2320 Kgs. Recovered methanol from Kairav Chemicals on 26-5-2009 @ Rs. 8. 75 per litre, 2350 kgs. From Kairav Chemicals on 14-6-209 @ Rs. 8. 00 per litre and 13494 kgs. On 22-6-2009 @ Rs. 9. 25 per litre on behalf of Gujarat Foundry Flux Company. It is the case of the petitioner that as the said stock appeared to be inferior in quality, Shri Indravadanbhai Acharya, owner of M/s Gujarat Foundry Flux Company refused to take delivery of stock and it was kept at the godown of the petitioner. Consequent upon death of several persons in the hooch tragedy (Latthakand) in Ahmedabad, as it was found by the State authorities that methyl alcohol was being used by some bootleggers in preparing country made liquor, State Government started checking purchase and sale of methyl within Gujarat. On an inspection by the Inspecting Officer at M/s Cadila Healthcare Ltd. , it was found that stock of recovered methanol was sent to M/s Gujarat Foundry Flux Company and hence, on a cross verification at the said Company, it was noticed that said Company did not receive the stock and since name of the petitioner was given by M/s Gujarat Foundry Flux Company, inquiry was conducted at the place of the petitioner and stock of recovered methanol was found from his godown. From the statements of persons of M/s Cadila Healthcare Ltd. , Kairav Chemicals Ltd. , Gujarat Foundry Flux Company, the petitioner and his partner revealed that the petitioner as well as his friend Milap Shah was acting agent on behalf of Gujarat Foundry Flux Company. According to the petitioner, as there existed disputes between the parties, though the transaction was legal and valid, the stock was lying at the godown of the petitioner. Hence, FIR was registered against the petitioner and his friend with Vatva Police Station for the offences punishable under Secs. 66 (b) and 65 (e) of the Bombay Prohibition Act and in pursuance thereof, the petitioner was arrested on 27-7-2009 and was remanded from 28-7-2009 to 30-7-2009. During the remand period, since nothing incriminating was found, further remand of the petitioner was rejected by the learned Metropolitan Magistrate, Ahmedabad. Now the petitioner is on bail by the order dated 12-8-2009 passed by the learned City Sessions Judge, Ahmedabad in Cri. Misc. Appln. No. 2384 of 2009. On the basis of said solitary prohibition offence registered with Vatva Police Station being Prohibition Crime Register No. 5173 of 2009 against the petitioner and his friend Shri Milap Shah, detention orders came to be passed against them. Said order was executed on Shri Milap Shah and he has been detained in Rajkot District Jail while detention order concerning the petitioner is yet to be executed. It was submitted by the petitioner that order of detention qua his friend has been revoked by the State Government. Hence, the present petition at a pre-execution stage.

(3.) AN affidavit in reply was filed by the respondent No. 2 inter alia contending that the present petition has been filed with misconception of facts and law at the pre-execution stage of detention order. It was also contended that the petitioner is required to surrender before challenging the order of detention which is yet not served on him. Though efforts were made by the police authorities to execute the order of detention, as the petitioner was not available at his residential address, the order of detention could not be executed and therefore, the present petition is not maintainable at law. It was further contended that since the detaining authority was subjectively satisfied after taking into consideration all the relevant materials placed before it including the documents relating to offence registered against the petitioner that the activities of the petitioner were prejudicial to the maintenance of public order and public health, order of detention declaring the petitioner as "bootlegger" was passed against the petitioner on 21-8-2009. It was further contended that order of co-accused has been revoked by the State Government on its own merits. However, since the petitioner was absconding, the order of detention has not been executed on him. Hence, It was contended that alternative remedies as provided under the provisions of the PASA Act can be availed of by the petitioner on surrendering to the order of detention. It was, therefore, submitted that the petition was liable to be dismissed, particularly when the detenu absconded and the order of detention along with grounds of detention and other documents could not be personally served and could not be executed.