IMPORTANT POINT
The court emphasized that relying on stale offences to arrive at subjective satisfaction for preventive detention is impermissible and that seeking shelter under preventive detention law is not the proper remedy if the detenue is a menace to society.

JUDGMENT :

(A.Y. Kogje, J.)

1. This petition under Article 226 of the Constitution of India is filed for following relief:-

“A. Your Lordship be pleased to Admit and allow this Special Civil Application be pleased to issue a writ of Mandamus, order direction to the detaining authority to release the petitioner from the illegal detention.

B. Your Lordship be pleased to quash and set aside the order of detention passed by Respondent No.2 on dtd: 23/09/2023 vide PCB/PASA/DTN/525/2023 under the PASA Act.”

2. Essentially, the challenge is to the order of detention dated 23.09.2023 passed by the Commissioner of Police, Ahmedabad City, where the Detaining Authority has relied upon three offences registered with Sardarnagar Police Station under the provisions of the Prohibition Act and treated the petitioner to be “bootlegger” as defined under section 2(b) of the Act.

3. Learned advocate for the petitioner has challenged the order of detention on the ground that offences on which the Detaining Authority has relied upon in the grounds of detention are stale offences and in fact, it is only one offence, which was registered on 29-06-2023 that the order of detention has been passed and therefore, essentially, it is the order of detention passed on solitary offence.

3.1 Learned advocate for the petitioner has submitted that the Detaining Authority has referred to two offences, which were registered in the year 2021 and therefore, reliance is placed on stale offences, which according to the learned Advocate is impermissible.

3.2 Learned advocate for the petitioner has lastly submitted that the petitioner was enlarged on anticipatory bail in connection with the offence registered in the year 2021. Despite this, the Detaining Authority or the Sponsoring Authority being the same, have not resorted to lessor drastic remedy available by cancelling the anticipatory bail.

4. Learned AGP for the respondent State has objected to the grant of petition and has submitted that there are three offences registered against the petitioner within Commissionerate and therefore, he falls under the provisions of the Prohibition Act and therefore, rightly termed as “bootlegger” as defined under section 2(b) of the Act.

4.1 Learned AGP has submitted that on previous three occasions, the petitioner was detained for the similar offence and therefore, despite indulgence being shown by the State, the petitioner has continued his anti-social activities.

5. Learned Advocate for the petitioner in rejoinder has submitted that though the reference is made to three previous Detention Orders, according to the petitioner, in each of detention, order of detention was either revoked by the State or by the Advisory Board. The petitioner has also preferred the petition before this Court, which came to be withdrawn on account of revocation of the earlier order of detention. It is submitted that despite this being subsequent development, the Detaining Authority has not taken into consideration such details and therefore, has failed to apply its mind to the relevant circumstances.

6. Having heard learned Advocates for the parties and having perused documents on record, it appears that the order of detention dated 23.09.2023 passed by the Commissioner of Police, Ahmedabad City indicates that the Detaining Authority has relied upon three offences registered under the provisions of the Prohibition Act, the details of which are as under: