SALAM ABDUL HANIFSHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS petition challenges enforcement, implementation and execution of the order of detention prepared and sought to be served on the petitioner by the respondent No.2 under the provisions of Sec.3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as 'the PASA' for short).

(2.) IT may be noted that during the pendency of this petition, detention order has been passed by the respondent No.2- District Magistrate, Navsari, against the petitioner on 21-9-2011 and hence, necessary amendment was sought for and this Court vide order dated 2-12-2011 permitted necessary amendments to be carried out in the prayer clause.

(3.) AN affidavit in reply was filed by the respondent No.2 contending that the petition filed by the petitioner was not maintainable at law. The present petition is filed with misconception of facts and law at the pre-execution stage of detention order. It is also contended that the petitioner is required to surrender before challenging the order of detention which is yet not served on him. It is further contended that since the detaining authority was subjectively satisfied after taking into consideration all the relevant materials placed before it including the documents relating to the offence registered against the petitioner that the activities of the petitioner was prejudicial to the maintenance of public order, order of detention was passed against the petitioner.. The efforts made by the PI, LCB, Navsari, to serve at the residence, relatives and business and other places also came to be futile, however, it was reported that the petitioner was absconding to evade execution of the order of detention and since the petitioner is evading the service and execution of the detention order passed under PASA Act and not a law abiding citizen, the present petition at a pre-execution stage is not tenable in law as per settled legal position of law laid down by the Hon'ble Supreme Court of India. It is further contended that the petitioner will have the grounds of detention after the detention order is effected. However, the petitioner cannot compel the authorities to disclose the grounds of detention before it is executed without surrendering to the authorities. It is further contended that interfering with the order at this stage without the petitioner surrendering to the authorities would defeat the very purpose of the PASA Act. It was, therefore, submitted that the petition was liable to be dismissed, particularly when the detenu absconded and the order of detention along with grounds of detention and other documents could not be personally served and could not be executed.