A detenu cannot challenge a preventive detention order before execution unless it is shown to be ab initio void or arbitrary, emphasizing the balance between individual liberty and societal interests.

JUDGMENT :

SAMIR J. DAVE, J.

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

“(a) That the Hon’ble Court may be pleased to admit this Special Civil Application;

(b) That this Hon’ble Court may be pleased to allow this present Special Civil application by issuing appropriate writ of mandamus or any other appropriate writ, order or direction for quashing and set aside the detention order at pre-execution stage passed by respondent no.2 under the provisions of section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980; as same being illegal, invalid, null and void, arbitrary, suffers from non-application of mind, without jurisdiction and competence, suffering from malafides and violative of art 14, 19 and 21 of the Constitution of India;

(c) Pending admission hearing and final disposal of this petition, this Hon’ble Court may be pleased to restrain the respondents and or their agent’s, servant’s persons, employee etc. From executing the proposed order of detention upon the petitioner during the pending hearing and final disposal of this petition in the interest of justice;

(d) xxx.. xxx… xxx;”

2. The challenge is to the order of detention at pre-execution stage that the respondent No.2– detaining authority viz. the District Magistrate, Porbandar, in exercise of powers under the provisions of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (for short “ the Act”) and will detain the petitioner.

3. Learned counsel for the petitioner has argued that there is no objective material on the basis of which detaining authority can ever reach to a subjective satisfaction that the detention order is necessary against the present petitioner. It is further submitted that the contract of the petitioner already got over in the year 2021. there is minor short-fall which has been deducted from the bill amount of the present petitioner which was lying as deposit with the authority. This Hon’ble Court after considering the role of the petitioner has granted anticipatory bail to the petitioner having found that the petitioner is not involved in actual siphoning away of the material.

4. Learned Counsel for the petitioner relied upon the decision of the Hon’ble Apex Court in case of Nenavath Bujji Etc. Vs. The State of Telangana and Ors., passed in Criminal Appeal Nos.1739 to 1739 of 2024 and also relied upon another decision of the Hon’ble Apex Court in the case of Deepak Bajaj Vs. State of Maharashtra and Anr., reported in (2008) 16 SCC 14.

5. As against that, learned AGP has opposed the grant of petition by submitting that it is found and verified during the time of the raid as well as the statements that the petitioner has conducted the serious misconduct in connivance with the manager, contractor, supervisor and other accused persons. During investigation, it was also found that there is deficiency of more than 1000 bags of food grains during the subsistence of the petitioner’s contract. He also submitted that the order of detention is not executed and the petitioner has not surrendered to the order passed by the authority and as such no right much less fundamental right of the petitioner is violated by the respondent authorities and hence, as per the settled legal position of law, the petitioner is required to surrender first before challenging the order of detention, which is not even served upon him and not executed by the authority and therefore, present petition may be rejected.

6. The Court may refer to the elaborate pleading made in the petition especially the grounds to challenge the anticipated detention. The perusal of the grounds makes it clear that each of the grounds is a ground which are in fact challenging the order of detention once having been executed. The grounds mentioned are resorting to the lesser drastic remedy, no material of petitioner indulging in offense in future involving in future o