[ENTITY] Petitioner(s)V/S[ENTITY] C/SCA/3975/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 3975 of 2013 [ENTITY] Petitioner(s) Versus [ENTITY] & 3 Respondent(s) Appearance: Mr [ENTITY] FOR MR [ENTITY], ADVOCATE for the Petitioner(s) No. 1 MS [ENTITY], ADVOCATE for the Petitioner(s) No. 1 MS [ENTITY] for the Respondent(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 2 - 4 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 24/04/2013 ORAL ORDER
1.0 Pursuant to the order dated 04.04.2013, Ms. [ENTITY], learned Assistant Government Pleader has produced the order dated 19.03.2013 passed by respondent no.2- District Magistrate, Junagadh exercising his powers under [SECTION] of the [ACT] ( For short The [ACT] ), declaring the petitioner as a bootlegger for the offence registered against him under the [ACT].
2.0 The petitioner is yet not detained pursuant to the order of detention passed by respondent no.2 and, therefore, this petition is at pre-execution stage of the detention order.
3.0 Mr. [ENTITY], learned advocate appearing for the petitioner has submitted that by catena of decisions of this Court, it has been held that only registering offences under the provisions of the [ACT], the person cannot be treated as bootlegger person. He has further submitted that the Apex Court has also held that if it is found from the record that the case lodged for law and order situation and not with regard to maintenance of the public order, the order of detention is required to be quashed and set aside. He further submitted that considering the petitions at pre-execution stage, it has been held by the Apex Court in Para 15 in the case of [ENTITY] Vs. State of Maharashtra reported in (2008) 16 SCC 14, the order of detention can be quashed at pre-execution stage and requested to quash the petition.
4.0 I have gone through the detention order dated 19.03.2013 passed by the authority. It appears that the authority has relied upon the several statements of witnesses and have also gone through the judgements relied upon by the learned advocate for the petitioner i.e (I) [ENTITY] (supra), (ii) Additional Secretary to the Government of India Vs. Smt. [ENTITY] reported in 1992 Supp(1) SCC 496, (iii) State of Maharashtra V. [ENTITY] Punjabrao Gawande reported in (2008) 3 SCC 613 and (iv) [PRECEDENT].
4.1 Para 15 of the case of [ENTITY] (Supra) reads as under;
15. If a person against a preventive detention order has been passed comes to Court at the preexecution stage and satisfies the Court that the detention order is clearly illegal, there is no reason why the Court should stay its hands and compel the petitioner to go to jail even though he is bound to be released subsequently (since the detention order was illegal). As already mentioned above, the liberty of a person is a precious fundamental right under [SECTION] of the [ACT] and should not be lightly transgressed. Hence, in our opinion, [ENTITY] case cannot be construed to mean that the five grounds mentioned therein for quashing the detention order at the pre-execution stage are exhaustive.
5.0 In the last judgement, i.e. [PRECEDENT] (supra), after considering the cases of [ENTITY], [ENTITY] and [ENTITY] (Supra), the Apex Court held in Para 31 as under:
In the light of the above, let the various Special Leave Petitions and the Writ Petitions be listed for final hearing and disposal on 7th August, 2012 at 3.00 p.m. This Bench be reconstituted on the said date, for the aforesaid purpose.
6.0 As per the last information, the Apex Court has heard the matters and kept for order.
6.1 Considering the above aspect and the merits of the case and with regard to the bootlegger person and considering the different ratios laid down by the Hon ble Apex Court in the case of [PRECEDENT] and the recent judgement dated 28.3.2011 passed by the Division Bench of this Court (Coram : [ENTITY] C.J. & [ENTITY] JJ.) in [CASE NUMBER] in [CASE NUMBER] ([PRECEDENT], prima facie I am of the opinion that at this stage it would be desirable to stay the implementation, execution and operation of the detention order dated 19.03.2013.
Hence, the implementation of detention order dated 19.03.2013 is stayed till next date of hearing. Hence, the implementation and execution of detention order dated 19.03.2013 is stayed till next date of hearing.
7.0 Rule returnable on 08.05.2013. Ms. [ENTITY], learned Assistant Government Pleader waives service of notice of rule on behalf of respondent no. 1. Direct service is permitted.
([ENTITY], J.) niru* Page of 4