Judgment Rajesh H. Shukla, J.—Present application has been filed by the petitioner detenu under Article 226 of the Constitution of India for a prayer of issuance of writ of mandamus or any other writ order or direction to quash and set aside at pre-execution stage the order of detention passed by the Respondent No. 2 under the Gujarat Prevention of Antisocial Activities Act, 1985 (hereinafter referred to as ‘the PASA Act’) as arbitrary, illegal and violative of Articles 14, 19 and 21 of the Constitution of India on the grounds set out in the memo of petition in detail referring to the judgments of the Apex Court as well as other judgments. 2. Learned Senior Counsel Mr. P.M. Thakkar appearing with Learned Counsel Mr. H.R. Prajapati submitted that the order of detention is passed by Respondent No. 2 on 23.08.2010 though it has not been served upon the petitioner. Learned Counsel Mr. Thakkar submitted that the petition challenging the detention order is maintainable. He submitted that the order of detention could have been served as the petitioner was in custody. He pointedly referred to the date of the order of detention as well as other record and submitted that, as observed in a judgment of the High Court of Gujarat reported in 2000(3) GLH P.269, the petitioner would have right to make a representation before the detention order is approved by the competent authority/State Government. He emphasized and submitted that therefore within 12 days after the order is passed the petitioner could have made the representation to persuade the competent authority against the order of detention which opportunity has been denied. He emphasized referring to Section 3(3) of the PASA Act and submitted that it has to be approved by the State Government and therefore the right is available to the petitioner before it is approved. However, he submitted that such right would stand denied to the petitioner and therefore it would be violative of Article 14 and the order of detention is required to be set aside. However, he submitted that such right would stand denied to the petitioner and therefore it would be violative of Article 14 and the order of detention is required to be set aside. Again, he referred to the judgment reported in 2000(3) GLH P. 269 and emphasized the observations made in Para 5 and 6 and submitted that as observed in this judgment, the petitioner could have made the representation before the detaining authority before the expiry of 12 days from the detention and since the detention order has been approved, simultaneously with the service of the detention order, no time was left and therefore the order was set aside. He submitted that therefore the observations would apply to the facts of the case and the order of detention requires to be set aside. Learned Senior Counsel submitted that the authority was very much aware that the applicant was in custody. He has also referred to the judgment of the High Court of Gujarat reported in 2003(2) GLH 302 and submitted referring to the observations in Para 17 that it would amount to denial of right to make a representation before the detention order is approved and therefore the present petition deserves to be allowed. For that purpose, he has also referred to the ground H. Learned Counsel Mr. Thakkar also submitted that the detaining authority was required to record the subjective satisfaction on two aspects (1) detaining authority must be aware about the fact that the petitioner is in custody and (2) detaining authority must record its reason as to likelihood of petitioner’s being released on bail in future. He emphasized and submitted that the order of detention is required to be passed as a last resort. Learned Counsel Mr. Thakkar strenuously submitted that the order of detention could not have been passed as the petitioner was not likely to continue his alleged activities as he was already in custody which has not been appreciated. In support of this, learned Senior Counsel Mr. Thakkar referred to and relied upon the decision of the Hon’ble Apex Court reported in (1986) 4 SCC 416 . He has submitted that whether the order of detention could be passed when the person or the detenu is already in jail custody. In support of this, learned Senior Counsel Mr. Thakkar referred to and relied upon the decision of the Hon’ble Apex Court reported in (1986) 4 SCC 416 . He has submitted that whether the order of detention could be passed when the person or the detenu is already in jail custody. He emphasized and submitted that there has to be some material for passing such order and the authority should reach to the satisfaction that he is likely to indulge in such activity. Learned Senior Counsel Mr. Thakkar submitted that as the petitioner was already in custody such satisfaction could not have been arrived at as it is evident from the record. In support of this submission, he has referred to and relied upon the judgment of the Hon’ble Apex Court reported in (2008) 9 SCC P. 89. 3. Learned Counsel Mr. Thakkar also submitted that the last incident for the alleged offence is said to have taken place in February 2009 and he pointedly referred to the FIR which is lodged on 01.02.2010. Therefore, Learned Counsel Mr. Thakkar submitted that when the detention order is passed, it is required to be considered whether the authority is required to be satisfied that there is possibility of petitioner’s indulging in similar activities. He, referred to and relied upon the judgments of the Hon’ble Apex Court reported in AIR 1990 SC 516 , 1993(2) (Suppl.) SCC 61 and also the judgment of this Court reported in 1997(1) GLH P.381. 4. Learned Counsel Mr. Thakkar also referred to and relied upon the judgment of the Apex Court in the case of Deepak Bajaj vs. State of Maharashtra & Ors. reported in 2009(1) GLH P.140 and pointedly referred to the observations made in Paras 16, 17, 18, 24, 28 and 34. He emphasized the observations made in Para 17 and 18 and also the observations made in Para 24. Para 24 reads as under:— “24. If a person against whom a preventive detention order has been passed comes to Court at the pre execution stage and satisfied the Court that the detention order is clearly illegal, there is no reason why the Court should stay its hands and compel the petitioner to go to jail even though he is bound to be realised subsequently (since the detention order was illegal). As already mentioned above, the liberty of a person is a precious fundamental right under Article 21 of the Constitution and should not be likely transgressed. Hence in our opinion Smi. Alka Subhash Gadia’s case (Supra) cannot be construed to mean that the five grounds mentioned therein for quashing the detention order at the pre execution stage are exhaustive.” 5. Learned Counsel Mr. Thakkar, therefore, submitted that the earlier judgment in the case of Additional Secretary to the Government of India & Ors. vs. Smt. Alka Subhash Gadia & Anr. reported in 1992 (suppl.1) SCC 496 has been considered and it has been specifically observed that Smt. Alka Subhash Gadia’s case cannot be considered to mean that the five grounds mentioned therein for quashing the detention order at pre execution stage are exhaustive (emphasis supplied). Learned Senior Counsel, therefore, submitted that it will have to be considered and it cannot be said that the grounds referred to in Alka Subhash Gadia’s case are only exhaustive and only on such circumstance the Court can interfere, particularly, when it is affecting the life and liberty of the detenu. He has also referred to the earlier judgment in the case of Additional Secretary to the Government of India & Ors. vs. Smt. Alka Subhash Gadia & Anr. reported in 1992 (Suppl.1) SCC 496 to support his submission that the grounds mentioned therein cannot be restricted while considering such petition affecting the life and liberty under Article 21 of the Constitution of India of the person like petitioner detenu. He, therefore, submitted that present petition may be allowed. 6. Learned AGP Ms. Nair referred to the petition and submitted that the prayer which the petitioner has asked is that the Court should consider the prayer at pre execution stage in which normally Court would be slow in exercising such discretion. In support of this submission, learned AGP referred to the case of Alka Gadia (Supra) and pointedly emphasized the observations made in Para 30 that, “The Courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the Courts have interfered with them at the pre execution stage are necessarily very limited in scope and number viz. where the Courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed,(ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so.” Learned AGP submitted that none of the grounds existed as enumerated in the aforesaid judgment. Therefore, the learned AGP submitted that at this stage, the Court may not allow the present petition. Learned AGP referred to and relied upon the decision in the case of State of Maharashtra & Ors. vs. Bhaurao Punjabrao Gawande reported in 2008(3) SCC 613 and referring to the observations made in Paras 46, 57, 59 and 63, she again emphasized that the Court should not exercise the discretion. She pointedly referred to Para 46 by referring to the earlier judgment and emphasized that the jurisdiction is to be used sparingly and again she has emphasized the observations made in Para 63 as under :— “The Court must be conscious and mindful of the fact that this is a ‘suspicious jurisdiction’ i.e. jurisdiction based on suspicion and an action is taken ‘with a view to preventing’ a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a Court of law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a writ Court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order.” 7. The learned AGP also submitted that the detenu has still an option to challenge the order of detention and therefore, at this stage of pre-execution, the Court may not exercise the discretion. 8. The learned AGP again referred to the judgment of the Apex Court in Alka Gadia’s case (Supra) and submitted that the case on hand does not fall in any of the exceptions and therefore considering the limited scope as observed in the judgment of the Apex Court in the case of State of Maharashtra & Ors. 8. The learned AGP again referred to the judgment of the Apex Court in Alka Gadia’s case (Supra) and submitted that the case on hand does not fall in any of the exceptions and therefore considering the limited scope as observed in the judgment of the Apex Court in the case of State of Maharashtra & Ors. vs. Bhaurao Punjabrao Gawande (Supra), the discretion may not be exercised in favour of the petitioner. 9. Learned AGP has also referred to and relied upon the judgment of the Hon’ble Apex Court in the case of Naresh Kumar Goyal vs. Union of India & Ors. reported in (2005) 8 SCC 276 and submitted that the three Judges Bench had also considered the earlier judgment of Smt. Alka Subhash Gadia (Supra) and the scope of interference at pre-execution stage and has also observed that the Court can exercise the discretion in the matter of pre-detention cases only in the circumstances enumerated in the case of Alka Gadia (Supra) and therefore once the facts of the present case are not covered by the guidelines in Alka Gadia’s case (Supra), the Court may not entertain the present petition at this stage. Learned AGP submitted that the order of preventive detention can be passed if there is a possibility that such a person is likely to be released and in the facts of the present case the bails have been granted and therefore the proposal was made for passing the appropriate order and on the basis of the report, the order of detention has been passed. She emphasized that the information was called for whether he could be released or not. Therefore, learned AGP submitted that merely because the detaining authority was aware that the detenu is in jail by itself is not a ground as it has to be considered with reference to number of factors and the Hon’ble the Apex Court in a judgment reported in 1982 (2) SCC 43 has also made observations in this regard. The learned AGP referred to and relied upon the judgment of the Hon’ble Apex Court reported in 1990 SC 1196 and submitted that the expression compelling reason includes that the detaining authority is satisfied that the detenu is likely to be released in the near future and antecedents are also required to be considered. The learned AGP referred to and relied upon the judgment of the Hon’ble Apex Court reported in 1990 SC 1196 and submitted that the expression compelling reason includes that the detaining authority is satisfied that the detenu is likely to be released in the near future and antecedents are also required to be considered. Learned AGP, therefore, submitted that in the facts of the present case, it cannot be said that the subjective satisfaction has not been reached considering this aspect about compelling reason. Learned AGP has submitted that the another facet of the argument is regarding the delay in passing the order of detention. However, she submitted that the observations made in the case of Deepak Bajaj (Supra) would not be applicable to the facts of the present case. It was submitted that it was a case where the confessional statement made was not taken into consideration, whereas, in the facts of the present case the facts are totally different where the detenu is alleged to have indulged in number of cases of prohibition and in continuation of activities of bootlegging. The learned AGP referred to the judgment of the Division Bench of this Court in the case of Popat Mohan Vaghari vs. State of Gujarat & Ors. reported in 1989(1) GLH 551 and submitted that the word bootlegger has been considered as provided in this Act and the observations have been made referring to the public order in Para 5 which she has emphasized. In Para 5, it is observed as under :— “But in view of the aforesaid decisions, of this High Court and that of the Supreme Court in the case of Rajendrakumar (Supra) and particularly in view of the explanation to Section 3(4) of PASA it is not permissible to take such a detached and disintegrated view of the matter. Explanation to Section 3(4) provides that public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in the Sub-section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any Section thereof or a grave or wide spread danger to life, property or public health. Once the meaning public order as defined in explanation to Section 3(4) is kept in view it is difficult to hold that activity by which a person sells liquor in public streets and allows and/or entices other people to drink the same in public place would not adversely affect public order. Even one liquor den is sufficient to create a feeling of insecurity in the minds of general public of the locality wherein such liquor den is being operated. At any rate a Section of the general public, i.e. entire womenfolk, will certainly feel insecure if such liquor dens are being operated in public in the locality concerned. Therefore, contention that there was no adverse effect or no likelihood of adverse effect on the maintenance of public order cannot be accepted.” 10. Learned AGP Ms. Nair submitted that the antecedents and the number of cases registered against the petitioner detenu and the report made would sufficiently establish that the subjective satisfaction is arrived at suggesting the order of detention. Therefore, this Court may not exercise the discretion at such pre execution stage. 11. In view of the rival submissions, it is required to be considered whether the present petition cane be entertained or not. 12. First aspect, which is required to be considered is with regard to exercise of discretion by this Court in exercise of jurisdiction under Article 226 of the Constitution of India under judicial review at pre-execution of stage of the detention order. Law is well settled that there is no lack of jurisdiction as the scope of exercising jurisdiction under Article 226 of the Constitution of India is of wide amplitude, however, it is a matter of self restraint for exercise of such power or jurisdiction with care and circumspection. The Hon’ble Apex Court in a judgment reported in 2008(3) SCC 613 in case of State of Maharashtra & Ors. vs. Bhaurao Punjabrao Gawande has occasion to consider and it has been discussed in Para No. 42 as under :— “42. Having gone through those decisions, we are of the view that normally and as a general rule, an order of detention can be challenged by the detenu after such order as also the grounds of detention have been received by him and the order is executed. Having gone through those decisions, we are of the view that normally and as a general rule, an order of detention can be challenged by the detenu after such order as also the grounds of detention have been received by him and the order is executed. In exceptional cases, however, a High Court or this Court may exercise extraordinary powers to protect a person against an illegal invasion of his right to freedom by protecting him while still he is free by issuing an appropriate writ, direction or order including a writ in the nature of mandamus questioning an order of detention and restraining the authorities from interfering with the right of liberty of an individual against whom such order is made. 13. Further, it has been observed referring to earlier judgments and quoted in Para No. 44 dealing with the same contention which has sought to be canvassed. Dealing with this aspect, it has been observed in Para No. 45 as under :— “42. Alka Subhash Gadia was indeed a leading decision of this Court on the point. This Court in that case stated that if in each and every case a detenu is permitted to challenge an order of detention and seek stay of the operation of the order before execution, “the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period”. The Court, after considering several cases, observed that with a view to prevent possible abuse of ‘draconian measure’ of preventive detention, the Legislature had taken care to provide various salutary safeguards such as (i) obligation to furnish to the detenu the grounds of detention; (ii) right to make representation against such action; (iii) constitution of Advisory Board consisting of persons who are or have been qualified to be appointed as Judges of the High Court; (iv) reference of the case of the detenu to the Advisory Board; (v) hearing of the detenu by the Advisory Board in person; (vi) obligation of the Government to revoke detention order if the Advisory Board so opines; (vii) maximum period for which a person can be detained; (viii) revocation of detention order by the Government on the representation by the detenu, etc. 14. 14. Further, another facet of the arguments with regard to denial of right or opportunity of the detenu to challenge the order before the execution of the order, the Court has observed in Para No. 46 quoting from the earlier judgments in case of Alka Subhah Gadia as under. “46. The Court then considered the point as to denial of a right to the proposed detenu to challenge the order of detention before the execution of order and observed: “As regards his last contention, viz., that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well-merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Article 22 thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach any executive order resulting in civil on criminal consequences. However, the Courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the Courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary, extraordinary, and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri Jain’s present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibbal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre- execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary power of judicial review to interfere with the detention orders prior to their execution on any other grounds does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question”.(emphasis supplied) 15. The refusal by the courts to use their extraordinary power of judicial review to interfere with the detention orders prior to their execution on any other grounds does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question”.(emphasis supplied) 15. Therefore, in light of the aforesaid observations of the Apex Court, the submission made by the Learned Senior Counsel both with regard to maintainability and denial of right to make representation before the order is served or confirm is misconceived. Though the Learned Counsel has referred to and relied upon the observations made by the judgment reported in 2003 GLH 269 emphasizing the observations made in Para No. 5 that after the order is passed but before it is approved, if it is served, the deteue would have right of pursuing the authority, which is denied and, therefore, this itself would be a ground to set aside the order, cannot be accepted as an absolute proposition in light of the observation of the Hon’ble Apex Court and also considering the underlying philosophy with regard to preventive detention law. An opportunity of making representation to the authority for pursuing is one aspect but as can be seen from the scheme of the PASA, the right of the detenue is taken care of by providing appropriate safe guard and as observed in the aforesaid judgment of the Apex Court in case of State of Maharashtra & Ors. vs. Bhaurao Punjabrao Gawande in Para No. 45 that the right to make representation is still there for revocation of the detention order. The Advisory Board is constituted where the reference of the case of the detenue is made before the Advisory Board if the Advisory Board so opines. Therefore, the Hon’ble Apex Court conscious of the extra ordinary nature of this power or the jurisdiction to detain a person, which is referred as jurisdiction of suspicion and still such detention laws are held to be constitutional valid. It is required to be mentioned that the Apex Court has time and again has considered the aspect of liberty and Article 21 of the Constitution of India and it cannot be disputed that the liberty is the most valuable/cherished right of the citizens and liberty has to be preserved. It is required to be mentioned that the Apex Court has time and again has considered the aspect of liberty and Article 21 of the Constitution of India and it cannot be disputed that the liberty is the most valuable/cherished right of the citizens and liberty has to be preserved. But at the same time, such jurisdiction or the detention laws are also accepted as necessary evil in order to maintain balance between the right of individual like the detention and also right of society in general. The founding father of the Constitution were conscious about such practice need of preventive detention and, therefore, with a view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand and on the other hand, the application of State of maintenance, Law & Order, security and safety of the country and also interest of the society has maintained and upheld the validity of such laws subject to the safe guard. It is in this circumstances, even though the bill of right has been adopted by way of Part-III of the Constitution of India protecting the basic human rights of the citizens or the person as fundamental rights, the detention laws have been also accepted as a necessary evil. The Hon’ble Apex Court on this aspect of striking in balance in as many as case referred to this aspect, which has also been observed by the Hon’ble Apex Court in a judgment reported in 2005(8) SCC 276 in case of Naresh Kumar Goyal vs. Union of India, wherein it has been served in Para No. 35 as under :— “It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent the anti-social and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so. It, therefore, becomes imperative on the part of the detaining authority as well as the executing authority to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing the detenue and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority will defeat the very purpose of preventive action and turn the detention order as a dead letter and frustrate the entire proceedings. Inordinate delay, for which no adequate explanation is furnished, led to the assumption that the live and proximate link between the grounds of detention and the purpose of detention is snapped”. [See : P.U. Iqbal vs. Union of India and Ors., (1992) 1 SCC 434 ; Ashok Kumar vs. Delhi Administration, (1982) 2 SCC 403 and Bhawarlal Ganeshmalji vs. State of Tamilnadu, (1979) 1 SCC 465 ]. 16. Therefore, submissions made by the Learned Counsel, Mr. Thakkar referring to the judgment of the Hon’ble High Court of Gujarat reported in 2000(3) GLH 269 cannot be accepted as absolute proposition in light of the aforesaid observations. As a matter of fact, it is necessary that such a contention has to be considered in background of the facts and the observations has to be considered in light of overall concept of judicial review. Further, the proposition canvased is required to be read in context of the facts in a given case and, therefore, the judgment and the observation in a given case has to be read in the context of the peculiar facts. It is well accepted that the judgment of the Court cannot be accepted in every case as declaration of law in general unless it lays down a proposition of law while interpreting the provisions of a particular Statute or Rule. Therefore, the submission made by the learned senior counsel about the denial of opportunity to pursue the detention authority before it is approved cannot be accepted. 17. Therefore, the submission made by the learned senior counsel about the denial of opportunity to pursue the detention authority before it is approved cannot be accepted. 17. Another facet of argument, which has also been much emphasized referring to the judgment of the Hon’ble Apex Court reported in case of Deepak Bajaj vs. State of Maharashtra & Anr. in AIR 2009 SC 628 emphasizing that the judgment of the Hon’ble Apex Court in case of Smt. Alka Subhash Gadia cannot be construed to mean that five grounds mentioned therein of quashing of detention order at pre-execution stage are exhaustive. Learned Counsel, Mr. Thakkar has referred to this judgment at length to focus the submission with regard to exercise of discretion and Article 21 of the Constitution of India and fundamental rights of opportunity in Article 21 of the Constitution of India to further support his submission that the Court must even at pre-execution state exercise the discretion under Article 226 of the Constitution of India and set aside the impugned order of detention. Though this submissions have been canvased at length based on this judgment, it is required to be appreciated that the judgment in case of Smt. Alka Subhash Gadia reported in 1992 Supp (1) SCC 496 decided by a bench consisting of three judges and while focusing on this very issue with regard to scope of judicial review under Article 226 of the Constitution of India at pre-execution stage of detention order has at length discussed and the Honb’le Apex Court after discussing lastly, it has been observed that ‘it is also always open for the detenu or anyone on his behalf to challenge the detention order by way of habeas writ petition on any of the grounds available to him. “It is not, therefore, correct to say that no review of the detention order is available. It is still not open question as to the detenu is entitled, the order of detention prior to his execution at-least it could be challenged on a limited ground available.” In view of the discussion aforesaid, the answer to this question has to be in negative for various reasons. The Apex Court has discussed the reasons and has also in this judgment enumerated the limited scope of judicial review the detention order prior to his execution, which has been enumerated. The Apex Court has discussed the reasons and has also in this judgment enumerated the limited scope of judicial review the detention order prior to his execution, which has been enumerated. In fact, the Hon’ble Apex Court has observed as under :— “The refusal by the courts to use their extraordinary power of judicial review to interfere with the detention orders prior to their execution on any other grounds does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question”. (emphasis supplied) 18. The Apex Court has also in this very judgment considered the submissions with regard to Articles 21 of the Constitution of India, which reads as under :— “29. The celebrated writ of habeas corpus has been described as `a great constitutional privilege of the citizen’ or `the first security of civil liberty’. The writ provides a prompt and effective remedy against illegal detention and its purpose is to safeguard the liberty of the citizen which is a precious right not to be lightly transgressed by anyone. The imperative necessity to protect those precious rights is a lesson taught by all history and all human experience. Our founding fathers have lived through bitter years of the freedom struggle and seen an alien government trample upon the human rights of our citizens. It is for this reason that they introduced Article 21 in the Constitution and provided for the writs of habeas corpus, etc.” 19. Further, it has been observed that the person, who is detained in preventive detention law, necessary safe guards have been contained in Sub-clause 4 to 7 of the Article 22 of the Constitution of India. Thus, while maintaining the balance between the right of the individual claiming the person opportunity and the interest of the society, a care has been taken to provide sufficient sate guards. 20. Moreover, this judgment in case of Alka Gadia decided by a bench consisting of three Judges has also followed and reconfirmed in a subsequent decision reported in 2000 (8) SCC 630 by a bench consisting of three Judges of the Apex Court. It has been observed by repealing the very contention as sought to be raised by Learned Counsel Mr. Thakkar in this petition that the exceptions laid down in Alka Gadia’s case are not exhaustive. It has been observed by repealing the very contention as sought to be raised by Learned Counsel Mr. Thakkar in this petition that the exceptions laid down in Alka Gadia’s case are not exhaustive. It has been specifically observed in Para 7 on this aspect dealing with the similar contentions which have not been accepted. It is also required to be mentioned that as repeatedly observed in a catena of judicial pronouncement, the power of detention is purely of preventive measure and not punitive as observed by the Apex Court in a judgment reported in AIR 1952 SC 196 in case of State of Madras vs. V.G. Row, wherein it has been observed as under :— “preventive detention is “largely precautionary and based on suspicion” and to these observations may be added the following words uttered by the learned Chief Justice in that case with reference to the observations of Lord Finlay in Rex vs. Halliday, 1917 AC 260 namely, that “the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based”.” 21. Therefore, it is well accepted that such power of detention is exercise as a preventive measure and does not partake in any manner in the nature of punishment. Underline principle is that such person should be preventive from doing something if he is left free would probably indulge in such activity, which are considered to be again public interest. It is in this circumstances when such powers are exercised based on the material, the concept of subjective satisfaction based on objective material has been evolve in exercise of judicial review in order to protect the individual liberty. In negative of judicial review, the Courts have observed that in exercise of judicial review while examining such orders, the Court will examine whether the subjective satisfaction arrived at by the authority is based on or supported by material and it has not been guided by any extraneous consideration. Therefore, the ultimate test is whether the detention order is based on subjective satisfaction supported by the material justifying the exercise of such powers or not. Therefore, under the doctrine of the judicial review while exercising such discretion, the Courts have been considering the subjective satisfaction where it has been reached proper based on material or not. Therefore, the ultimate test is whether the detention order is based on subjective satisfaction supported by the material justifying the exercise of such powers or not. Therefore, under the doctrine of the judicial review while exercising such discretion, the Courts have been considering the subjective satisfaction where it has been reached proper based on material or not. In other words, again therefore, it depends upon the facts and circumstances of the case as well as the material before the authority for arriving at subjective satisfaction. It is examined to ascertain as to whether such subjective satisfaction is proper or not. This exercise is undertaken to protect the independent liberty inconsonance with the provisions of the State that the respective detention law as well as Articles 21 ad 22 of the Constitution of India but exercise of such power at the pre-execution stage cannot be a rule and rather it has to be by way of exception only for a limited ground enumerated by the Hon’ble Apex Court in case of Smt. Alka Gadia. 22. It is required to be mentioned at this stage that therefore, for the purpose of deciding the present petition in a given set of circumstances, it is required to be considered whether the subjective satisfaction arrived at by the authority cane be said to have been supported or not. As it is reflected prima-facie from the report submitted to this Court by the Investigating Agency referring the number of cases with regard to prohibition and other offence itself would be sufficient to justify such an order of detention as ‘Bootlegger’ has been defined in Sub-section (b) of Section 2 of the PASA, which reads as under:— “2(b) ‘bootlegger’ means a person who distills, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any provision of the Bombay Prohibition Act, 1949 (Bom. XXV of 1949) and the rules and orders made thereunder, or of any other law for the time being in force or who knowingly expends or applies any money or supplies any animals, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance or support of the doing of any of the things described above by or through any other person, or who abets in any other manner the doing of any such thing.” 23. Therefore, considering the number of cases and the activities, the petitioner cannot be covered by definition of ‘Bootlegger’. Other aspect with regard to his activity prejudice to the public order and/or prejudice to the public health is required to be considered. For the purpose of considering this aspect based on the submission with regard to the public order that even if it could affect the Law & Order, but would not be affecting the Public Order justifying the order of detention. It is required to be mentioned that the State Governance is having the prohibition and the Division Bench of the High Court has in a judgment reported in 1989 (1) GLH 551 in case of Popat Mohan Vaghari vs. State of Gujarat & Ors. has considered very provision of the PASA observing as under :— “The activity of storing liquor on large scale and selling the same through liquor dens in public alone would be sufficient to adversely affect the public order. One has to wink his eyes just for a while and imagine his own mother, wife, sister or daughter passing through public street where liquor is being sold in public and consumed openly. After imagining such a situation, question has to be put-Will there not be danger or alarm or feeling of insecurity among the general public or any Section thereof on account of such activity? Law cannot be interpreted and implemented by shutting one’s own eyes to the hard realities of life which exist beyond the airconditioned chambers of bungalows and offices. If rule of law has to succeed it has to run closer to the rule of life. Once the meaning of public order as defined in explanation to Section 3(4) is kept in view it is difficult to hold that activity by which a person sells liquor in public streets and allows and/or entices other people to drink the same in public place would not adversely affect public order.” 24. Therefore, the Court is required to consider that the order is justified and whether other alternative remedy have been considered by the detaining authority. It is also not for this Court at the stage of pre-execution stage to examine with minutely scrutiny to assess each and every angles. The Court cannot come to a conclusion or substitute the opinion once it has been shown prima-facie the existence of material or the ground of detention. It is also not for this Court at the stage of pre-execution stage to examine with minutely scrutiny to assess each and every angles. The Court cannot come to a conclusion or substitute the opinion once it has been shown prima-facie the existence of material or the ground of detention. 25. Again a useful reference can be made to the observations made by the Hon’ble Apex Court in a judgment reported in 2008 (3) SCC 613 , wherein it has been observed referring to the scope of judicial review with regard to subjective satisfaction to be arrived at by the Court and it has been observed in Para No. 39 as under :— “A Court cannot go into correctness or otherwise of the facts stated or allegations levelled in the grounds in support of detention. A Court of Law is ‘the last appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based. That, however, does not mean that the subjective satisfaction of Detaining Authority is wholly immune from judicial reviewability. By judicial decisions, courts have carved out areas, though limited, within which the validity of subjective satisfaction can be tested judicially.” 26. Therefore, the submission made by the Learned Counsel, Mr. P.M. Thakkar relying upon the judgment of the Hon’ble Apex Court reported in AIR 2009 SC 628 that the grounds or the guidelines cannot be said to be exhaustive cannot be accepted. It is required to be noted that in case of Deepak Bajaj, referring to the earlier judgment, the issue with regard to restriction was considered and the observations have been made by the Hon’ble Apex Court in this very judgment in background of the facts therein and, therefore, it cannot be said to be laying down a proposition of law that the opinion of the Apex Court in case of Smt. Alka Gadia cannot be considered to mean that five grounds mentioned in quashing detention or at pre-execution stage are exhaustive. Referring to the aspect of precedent also, the Hon’ble Apex Court has quoted as under :— “Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. Referring to the aspect of precedent also, the Hon’ble Apex Court has quoted as under :— “Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it.” 27. Therefore, keeping in view the aforesaid guidelines for the purpose of precedent and also keeping in view the observations of the Hon’ble Apex Court in a judgment reported in 2008 (3) SCC P. 613, the submissions made by the learned senior counsel Mr. Thakkar based on the aforesaid judgment in case of Deepak Bajaj (Supra) cannot be accepted. 28. In the circumstances, the present petition deserves to be dismissed. Accordingly, the present petition stands dismissed. Rule is discharged. P P P P P