S.G. Shah JUDGMENT
S.G. Shah, J.
1. Rule. Learned AGP waives service of Rule for the respondent State.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner prays to issue a writ of mandamus or any other appropriate writ, order or direction to set aside the order of detention, if any, passed by the detaining authority against the petitioner under the Gujarat Prevention of Anti-social Activities Act, 1985 (for short, the Act) in exercise of powers under Sub-section (2) of Section 3 of the Act as being illegal, null and void, arbitrary, without jurisdiction and competence suffering from legal mala fides and violative of Articles 14, 19, 21 and 22 of the Constitution of India.
3. The petitioner apprehends that the petitioner is likely to be detained under the Act on the pretext of F.I.R. being Prohibition C.R. No. 5354 of 2017 with Bardoli police station for the offence punishable u/s. 65AE, 81, etc. of the Prohibition Act.
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 v. State of Maharashtra and another reported in MANU/SC/8246/2008 : (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 v. Smt. Alka Subhash Gadia and another reported in MANU/SC/0552/1992 : 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 v. State of Gujarat and other 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. Before the petition is taken on merits, it is necessary to keep in mind the law as reiterated by the Division Bench of this Court in the case of Mahendrasinh Mangalsinh Jadeja (supra) in the matter of petitions challenging the detention order at pre-execution stage and, more particularly, para 11 thereof, which reads as under:-
11 The learned Single Judge has dismissed the writ petition filed by the appellant without perusing the order of detention and the grounds of detention solely on the premise that as per the p........