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SCA/3646/2010 2/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3646 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
BHARATBHAI
@ GOPAL BHAILALBHAI SHAH - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
YS LAKHANI FOR MR HR PRAJAPATI
for
Petitioner(s) : 1,
MR
DIVYESH SEJPAL AGP
for Respondent(s) :
1,2,3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 30/04/2010
ORAL
JUDGMENT
1. Rule.
Learned A.G.P. Mr.Divyesh Sejpal waives service of Rule for the
respondents.
2. By
way of filing present petition under Article 226 of the Constitution
of India, the petitioner has prayed in paragraph 7(a) to issue a writ
of prohibition or any other appropriate writ, order or direction to
respondent No.2 to place on record the order of detention and grounds
of detention and to quash and set aside the order of detention passed
by respondent No.2 at pre-detention stage as being illegal, invalid,
null and void, arbitrary, without jurisdiction, passed in malafide
exercise of powers and violative of Articles 14, 19 and 21 of the
Constitution of India. The second prayer is with respect
to stay the further implementation and execution of the order
of detention passed by respondent No.2 upon the petitioner pending
the admission, hearing and final disposal
of this petition. It is also prayed to restrain the respondent
authorities from taking coercive steps against the petitioner pending
admission, hearing and final disposal of this petition.
3. Learned
Senior Advocate Mr.Y.S.
Lakhani for Mr.H.R. Prajapati for the petitioner submitted that the
petitioner is doing business in the name and style of M/s.V.M. Shah
at Savli and has been engaged in the wholesale business of kerosene.
The petitioner has been
granted license for the same and he is carrying on the business since
last 60 years. During the aforesaid period, not a single illegality
was noticed by the Government Officers. It is submitted that Sardar
Grahak Sahkari Bhandar Limited is a registered Co-operative society
(for short, the society ) under the provisions of Gujarat
Co-operative Societies Act and the said society has been granted
license to run a petrol and diesel pump situated at Patiya, village
Bahutha, Tal. Savli. As per the case of the respondent-authorities,
on 11.11.2009, vigilance squad of the State carried out raid at the
diesel pump of Sardar Grahak Sahkari Bandar Limited. A panchnama was
drawn and, at the time of inspection, following persons were found at
the petrol pump.
Sadikmiya Kasammiya Malek
(President
of the Society);
Uttamchand Shrimanchand
Chaudhari
(Truck driver of Shreeji Transport);
iii.
Bhupendrabhai Govardhanbhai Shah
(Working at diesel pump) and;
iv.
Patel Purshottambhai Laxmanbhai
(Clerk at diesel pump).
During
the inspection, stock of 4818 liters of diesel and difference in
density diesel was noticed. In view of the aforesaid fact, a
panchnama was made and samples were drawn. At the time of inspection,
one truck bearing No.GJ-6-TT-4853 was standing at the diesel pump for
taking fuel. The statement of truck driver was recorded as the
authority doubted the behavior of the truck driver. The truck was
seized by order dated 11.11.2009. On 12.11.2009, F.I.R. in respect
thereof was registered as C.R.No.II-76 of 2009 for the offence
punishable under Sections 3 and 7 of the Essential Commodities Act,
1955 wherein, the petitioner has been shown as accused No.5.
Subsequently, Sections 465, 467, 468 and 120B of I.P.C. were added.
The petitioner submitted bail application being Criminal Misc.
Application No.1718 of 2009 before the learned District and Sessions
Court, Vadodara and the learned Judge granted regular bail to the
petitioner vide order dated 11.12.2009. The District Supply Officer,
Vadodara, vide letter dated 11.12.2009, informed the society
that the samples drawn on 11.11.2009 from the petrol pump were tested
at F.S.L., Gandhinagar and, as per report dated 01.12.2009, the
samples have been found as per the prescribed standards. Then, on
19.12.2009 and 20.12.2009, the inspecting team from Gandhinagar
carried out surprise checking in view of the alleged incident. They
verified the entire record of last three months i.e. from October to
December, 2009 and during inquiry, nothing wrong was found. On
07.12.2009, the police submitted application before the trial court
for cancelling the bail granted to
those accused, who were granted regular bail on 16.11.2009 by the
trial court. The said application was rejected by the trial
court vide order dated 07.01.2010. In the meanwhile, the Sessions
Court, Vadodara was moved for cancellation of bail granted vide order
dated 16.11.2009 by filing Criminal Misc. Application No.1756 of
2009. Another application being Criminal Revision Application No.29
of 2010 has been filed before the learned Sessions Judge, Vadodara to
quash and set aside order dated 07.01.2010 whereby, the trial court
had rejected the application for cancellation of bail and the same is
pending. Thus, despite the fact that the F.S.L., Gandhinagar had
given clean chit to the petitioner and others and falsified the
accusations made by the police authority, the District Superintendent
of Police was keen to detain the petitioner and others under the
provisions of Prevention of Black Marketing and Maintenance of
Supplies of Essential Commodities Act,1980 (for short, the Act )
and sent letter dated 30.12.2009 for drawing samples again. Thus, the
action of the respondent of drawing the samples again for second time
is illegal and it was done with malafide intention. It is submitted
that even the license granted to the petitioner was suspended for a
period of 90 days vide order dated 25.02.2010.
It is submitted that recently respondent No.2 passed the order of
detention under the said Act against the petitioner and as the
petitioner has not surrendered in pursuance of the order passed by
respondent No.2, the same is not
available with the petitioner. It is submitted that the action
of respondent No.2 is illegal, invalid, null and void and the same is
required to be quashed and set aside. The order of detention has
been passed with a view to punish the petitioner and not with
a view to achieve the real goal under the P.B.M. Act and, therefore,
the said order deserves to be quashed and set aside. Thus,
considering the fact that the order was passed with malafide
intention, the same cannot be sustained in the eye of law and it
deserves to be quashed and set aside. The learned advocate placed
reliance on the following judgments in support of the submission that
if the order is ex-facie illegal then it deserves to be quashed and
set aside.
1. Gimik
Piotr V/s. State of Tamil Nadu and others reported in (2010)1 SCC
609;
2. Vivekbhai Chhotubhai
Contractor V/s. State of Gujarat & Ors. reported in 1999(2) GLR
1120;
3. Deepak Bajaj V/s. State
of Maharashtra and Anr. reported in 2009(1)G.L.H. 140;
4. Rajesh Gulati V/s.
Government National Capital Territory of Delhi reported in
2002(0)GLHEL SC 22769 and;
5. Kaushalbhai Rameshbhai
Desai V/s. District Magistrate, Surat reported in 2005(0)GLHEL-HC
206304.
The
learned advocate placed reliance on the ratio laid-down in the above
judgments in support of the submissions canvassed at the bar. Thus,
the learned advocate submitted that considering the averments made in
the petition and ratio laid-down in the various judgments which are
referred to at the time of oral submission, it is a fit case to quash
and set aside the order of detention passed by respondent No.2 and,
in the alternative, to stay
implementation, operation and execution of the order of detention as
grounds of detention at pre-detention stage, are illegal, invalid and
null and void.
4. Learned A.G.P. Divyesh
Sejpal placed reliance on the affidavit-in-reply filed by
Vijay Nehra, Collector and District Magistrate, Vadodara to
controvert the averments made in the petition. It is submitted by the
learned A.G.P. that there is a basic difference between preventive
detention and punitive detention. It is enumerated in Article
22(3)(b) of the Constitution of India that nothing in clause (i) and
(ii) shall apply to any person who is arrested or detained under any
law providing for preventive detention. It is open for the detenu
after surrendering to the jail authorities to take permissible legal
grounds to challenge the order of detention. The learned A.G.P.
placing reliance on the said Act, submitted that when the activity of
the petitioner is detrimental under the Act, it is not a private
wrong but a public wrong and stay cannot be granted against
detention of a person, who has committed the the public wrong .
In view of the catena of decisions, the petition even cannot be
entertained at the pre-detention stage and, therefore, the learned
A.G.P. has placed reliance on the following judgments:-
1. Additional
Secretary to the Government of India & Ors. V/s. Smt Alka Subhash
Gadia & Ors. Reported in 1992 Suppl. (1) SCC 496;
2. Shri
N.K. Bapna V/s. Union of India reported in Judgments Today 1992(4) SC
49;
3. Subhash Muljibhai Gandhi
V/s. L.Himingliana and Anr. Reported in Judgments Today 1994(5) SC
358;
4. Vedprakash D. Chiripal
V/s. State of Gujarat reported in 1987(2) G.L.H. 482(F.B.);
5. Prashant Manubhai Vora
V/s. State of Gujarat reported in 1993(1) G.C.D. 101 (D.B.) and;
6. Elesh Nandubhai Patel
V/s. C.P.Sinh C.P. Ahmedabad reported in 38(2) 1997 (2) G.L.R. 1062.
Even subsequently, by
various judgments, the view enunciated in the aforesaid judgments was
reiterated and taken by the Court. It is submitted that the petition,
at pre-execution stage is not maintainable wherein, the accused as on
today is not aware about the grounds of detention order. He has not
even made representation to the State Government or before the P.B.M.
Advisory Board. Thus, on that ground alone, the petition deserves to
be rejected. The learned A.G.P. further submitted that it is an
admitted fact that on 11.11.2009, vigilance squad with Mamlatdar,
Savli visited the Mandli(Diesel pump) for an on the spot
investigation and at that time, there was a huge difference of 4818
liters found between the physical stock and the stock as per the
records. The variation in density was found to be more than the
permissible limits. After investigation, it was revealed that the
excess stock was kerosene stock and that was brought from V.M. Shah
depot and thereafter, F.I.R. being C.R.No.II-76 of 2009 was lodged.
It was found from the statement of the petitioner dated 06.12.2009
before the police that he had supplied the stock of kerosene. At the
time of raid, kerosene was filled in truck No.GJ-6-TT 4854 from tank
No.2 which was shown dry on record. However, 7402 ltrs. of Kerosene
was found in that tank. Hence, the stock was seized and the pump was
sealed. After recording the statements of witnesses and investigation
in the matter, the Superintendent of Police directed to take samples
in the presence of F.S.L. Officer, Police and Mamlatdar by letter
dated 30.12.2009. Thereafter, the sample was taken and it was found
from the report that it was not as per the prescribed standard and
the same was adulterated. Therefore, on 24.02.2010, the detention
order came to be passed under the provisions of the said Act against
Mr.Sadikmiya Kasammiya Malek and Shri Vasantbhai C/o Lalabhai Bapulal
Shah. In pursuance of the said order, they were detained on
01.03.2010. During the investigation, it was revealed that the
petitioner was managing the society and even salaries of Chairman and
Secretary were paid by the petitioner. Therefore, there is no merit
in the contention raised by the petitioner that he is the only
nominee member in the society. Thus, considering the aforesaid
aspect, the petitioner has not made out a case for grant of relief,
as prayed for in the petition and the petition deserves to be
rejected.
5. Heard learned Senior
Advocate Mr.Y.S. Lakhani for Mr.H.R. Prajapati for the petitioner and
learned A.G.P. Mr.Divyesh Sejpal for the respondents. I have
considered the averments made in the affidavit-in-reply filed by
Vijay Nehra, Collector and District Magistrate, Vadodara and
affidavit-in-rejoinder filed by the petitioner controverting the
averments made in the affidavit-in-reply and reiterating the
averments made in the petition. The judgments cited by the learned
counsel of both the sides are carefully taken into consideration by
me. The petitioner is doing business in the name and style of
M/s.V.M. Shah at Savli and has been engaged in the wholesale business
of kerosene. The petitioner has been granted license by the licensing
authority and has been engaged in the said business since last more
than 60 years. As per the case of the respondent authorities, on
11.11.2009, the vigilance squad of State had carried out raid at the
diesel pump of Sardar Grahak Sahkari Bhandar Limited. Panchnama was
drawn and thereafter, Mamlatdar, Savli was informed. During the
inspection, excess stock of 4818 liters of diesel and difference in
density diesel was noticed and, therefore, panchnama in respect
thereof was prepared and samples were also drawn. At the time of
inspection, one truck bearing No.GJ-6-TT-4853 standing at the diesel
pump for taking fuel was seized. The F.I.R. was registered on
12.11.2009 for the offence punishable under Sections 3 and 7 of the
Essential Commodities Act, 1955 and later on, Sections 465, 467, 468
and 120B of I.P.C. have been added in the F.I.R. The F.S.L. report
dated 01.12.2009 makes it abundantly clear that there was no
adulteration and the report was negative. However, on 20.12.2009, the
inspection team of Gandhinagar carried out surprise checking and they
verified the entire record of last three months. However, after
recording statement of witnesses, considering the entire situation,
the District Superintendent of Police, sent a letter dated
30.12.2009 for drawing samples again. The report suggests that the
sample is not as per the standard prescribed and it was adulterated,
as the sample failed in kinetic viscocity test. Thereafter, the
petitioner was served with the notice and his license was ultimately
suspended by the District Supply Officer on 25.02.2010 for a period
of 90 days with immediate effect. Respondent No.2 has exercised
powers under the provisions of the said Act. Considering the material
on record of the case and in view of the catena of decisions rendered
by the Apex Court, the Court has very limited and narrow scope while
exercising the powers at the pre-execution stage. On perusal of the
record of the case, the Court has to be prima facie satisfied with
(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 the
wrong purpose; (iv) that it is passed on vague, extraneous and
irrelevant grounds and (v) that the authority which passed it had no
authority to do so. This principle has been laid-down by the Apex
Court in case of Additional Secretary to the Government of India and
others V/s. Smt.Alka Subhash Gadia and another reported in 1992 Supp.
(1)SCC 496. The learned advocate for the petitioner has placed heavy
reliance on the judgment rendered in case of Deepak Bajaj V/s. State
of Maharashtra and Anr. reported in 2009(1)G.L.H. 140 in support of
the submission that it was held by the Apex Court in the said case
that five grounds which are explained in case of Additional Secretary
to the Government of India and others V/s. Smt.Alka Subhash Gadia and
another reported in 1992 Supp. (1) SCC 496 are only illustrative and
not exhaustive. In paragraphs 16 and 17 of the judgment in case of
Deepak Bajaj V/s. State of Maharashtra and Anr. reported in
2009(1)G.L.H. 140, the Hon’ble Apex Court held as under:-
16. Shri Shekhar Nafade
learned senior counsel for the State of Maharashtra submitted that
the five conditions mentioned in Smt.Alka Subhash Gadia’s case
(supra) were exhaustive and not illustrative. We cannot agree. As
already stated above, a judgment is not a statute, and hence cannot
be construed as such. In Smt.Alka Subhash Gadia’s case (Supra) this
Court wanted to lay down the principle that entertaining a petition
against a preventive detention order at a pre-execution stage should
be an exception and not the general rule. We entirely agree with that
proposition. However, it would be an altogether different thing to
say that the five grounds for entertaining such a petition at a
pre-execution stage mentioned in Smt. Alka Subhash Gadia’s case
(Supra) are exhaustive. In our opinion they are illustrative and not
exhaustive.
17. If a person against whom
a prevention detention order has been passed can show to the court
that the said detention order is clearly illegal why should he be
compelled to go to jail? To tell such a person that although such a
detention order is illegal, he must yet go to jail though he will be
released letter is a meaningless and futile exercise.
6. However, in the present
case nothing is shown to the Court that the detention order is
illegal. There is a huge difference of 4818 ltrs. of kerosene found
between the physical stock and the stock as per records. F.S.L.
report also indicates that variation in density is more than
permissible limits. It is a well settled law that entertaining a
petition against the preventive detention order at a pre-execution
stage should be an exception and not the general rule. In view of the
judgment of Apex Court in case of Deepak Bajaj (Supra), since the
five grounds mentioned in case of Smt. Alka Subhash Gadia’s case
(Supra) are not exhaustive but illustrative even on grounds other
than the five grounds mentioned above, petition at a pre-execution
stage in my view cannot be entertained.
7. Considering the ratio
laid-down in the judgments cited by the learned counsel of both the
sides and on perusal of the entire record placed for my perusal, I am
of the view that the petitioner has not made out a case for grant of
relief, as prayed for, in the petition and the petition is liable to
be rejected.
8. For the foregoing
reasons, the petition is devoid of merits and the same is hereby
rejected. Rule discharged.
(H.B.ANTANI,
J.)
Hitesh
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