The necessity of preventive detention only when ordinary criminal law is insufficient to deal with the situation and the distinction between 'law and order' and 'public order'.

JUDGMENT :

S.H. VORA, J.

1. Rule, returnable forthwith. Learned A.G.P. waives service of Rule for the respondent/State.

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

2. 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, 81 and 83 of Prohibition Act.

3. 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 18.10.2022 passed by the detaining authority.

4. 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.

5. 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. Learned AGP places reliance on the decision in the case of Mukeshbhai Versibhai Desai through his brother Bharatbhai Versibhai Desai vs. State of Gujarat rendered by Division Bench of this Court in LPA No. 108 of 2020 so as to contend that detention order at pre execution stage can be challenged only on five grounds as mentioned 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. Relying upon the decision rendered by the Division Bench, she further submits that present petition may be rejected and further places on record detention order for perusal of this Court, which is ordered to be taken on record as per direction issued during the course of hearing and recorded in Para-3 of the order.

6. 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 com