The need for adequate grounds for preventive detention and the distinction between 'law and order' and 'public order' as essential factors in determining the legality of a detention order.

JUDGMENT :

RAJENDRA M. SAREEN, J.

1. Rule. Learned A.G.P. waives service of Rule for the respondent-State.

2. With the consent of the learned advocates appearing for the respective parties, the present petition is taken up for final hearing today.

3. The petitioner apprehends that the petitioner is likely to be detained under the PASA Act on the pretext of F.I.R. for the offence punishable u/s 65(a), 65(e), 116-B of Prohibition Act.

4. During the course of hearing, the State was directed to place on record the detention order for Court’s perusal and consequently, the State has placed on record the detention order dated 29.08.2022 passed by the detaining authority.

5. Learned advocate for the petitioner has submitted that the petition in the present form is maintainable and tenable both on law as well as on facts to substantively challenge the order of detention at pre-execution stage in view of the decision of the Hon'ble Apex Court in the case of Deepak Bajaj vs. State of Maharashtra and Another, (2008) 16 SCC 14. According to him, the Hon'ble Apex Court, considering its earlier decision in the case of Additional Secretary to the Government of India and Others vs. Smt. Alka Subhash Gadia and Another, 1992 Supp. (1) SCC 496 and the objections taken at the pre-execution stage by the other side therein, on the identical ground, has held that “we are of the opinion that the five grounds mentioned therein on which the Court can set-aside the detention order at pre execution stage are only illustrative not exhaustive.” Learned advocate for the petitioner also relied upon the decision of the Division Bench of this Court in the case of Mahendrasinh Mangalsinh Jadeja vs. State of Gujarat and Others delivered in Letters Patent Appeal No. 1495 of 2013 on 24.12.2013. Lastly, he has submitted that it is an established law that the detention in case of offence registered against detenu under the Act, is against the law. According to him, except aforesaid offence, there is no material to indicate that the alleged activity of the petitioner is affecting or likely to affect adversely to the maintenance of public order and hence, the order of detention is illegal and bad in law.

6. Learned A.G.P. for the State, on the other hand, submitted that this petition is at pre-execution stage without surrendering before challenging the order of detention. Unless and until the petitioner surrenders, he would not be entitled to get the order as well as the grounds thereunder and the petitioner would not be entitled to copies of the same by filing the present petition.

7. The order of detention is passed on the basis of what has come to be known as the subjective satisfaction of the detaining authority such subjective satisfaction has to be arrived at on two points. Firstly, on the veracity of facts imputed to the person to be detained and secondly, on the prognostication of the detaining authority that the person concerned is likely to indulge again in the same kind of notorious activities. Whereas, normal laws are primarily concerned with the act of commission of the offence, the detention laws are concerned with character of the person who has committed or is likely to commit an offence. The detaining authority has, therefore, to be satisfied that the person sought to be detained is of such a type that he will continue to violate the laws of the land if he is not preventively detained. So, the commission of infraction of law, not done in an organized or systematic manner, may not be sufficient for the detaining authority to justifiably come to the conclusion that there is no alternate but to preventively detain the petitioner.

8. No doubt, neither the possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order of preventive detention. But, failure of the detaining authority to consider the possibility of either launching or pendency of criminal proceedings may, in the circumstances of a case, lead t