1
cri-wp-1064-11
pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1064 OF 2011
Shri Ravindra Prakash Nikam )
Age 29 years, residing at 803, )
South Kasaba, Shinde Chowk, )
Solapur (Now detained at Yerwada )
Central Prison at Pune) ) .. Petitioner
Vs.
Solapur
1. The Commissioner of Police )
)
2. The State of Maharashtra )
(Through the Secretary )
Preventive Detention, Home )
Department (Spl), Mantralaya, )
Mumbai - 400 032 )
3. The Superintendent )
Yerwada Central Prison, Pune )
4. Union of India )
New Delhi. ) .. Respondents
Mr. U. N. Tripathi for petitioner.
Ms. M. H. Mhatre, APP for State.
Mr. Y. M. Nakhawa for UOI.
CORAM: B. H. MARLAPALLE &
U. D. SALVI, JJ.
RESERVED ON : JUNE 24, 2011
PRONOUNCED ON : JULY 6, 2011
::: Downloaded on - 09/06/2013 17:27:24 :::
2
cri-wp-1064-11
JUDGMENT (PER B. H. MARLAPALLE,J.):
1. This petition, filed under Article 226 of the Constitution,
impugns the order of detention passed by the Commissioner of Police,
Solapur, on 1/3/2011 and in exercise of his powers conferred on him under
sub section (2) of section 3 of the Prevention of Black Marketing and
Maintenance of Supplies of Essential Commodities Act, 1980 (“the Act”
for short). Admittedly, the said order of detention is for a period of six
months and it has been approved by the State Government on 8/3/2011.
The State Government confirmed the impugned order of detention on
13/4/2011 and for a period of six months. The detention order was served
on the detenu on the same day it was passed and thus will continue to
operate till 31/8/2011. It has been stated in the order of detention that with
a view to prevent the detenu from acting in any manner prejudicial to the
maintenance of supplies of essential commodities to the community, it was
necessary to make an order under the Act. The detenu was actively
indulging in illegal activities punishable under the provisions of Essential
Commodities Act, 1955 and more particularly of black marketing of Blue
Kerosene and domestic LP Gas for pecuniary gains within the areas of
::: Downloaded on – 09/06/2013 17:27:24 :::
3
cri-wp-1064-11
Faujdar Chawadi Police Station, Solapur and he used to assault the people
with deadly weapons like wooden and iron rods who went against him and
he thus created a terror within the jurisdiction of the said police station.
His activities of illegal buying of Blue Kerosene which was meant for the
consumption or sale to Ration-card holders and also domestic LP Gas
which was meant for the consumption or sell to Gas-card holders and
instead was being sold in black market on higher rates to the Truck &
Auto-Rickshaw drivers who used it as fuel instead of diesel and petrol.
This illegal activity committed by the detenu created scarcity of Blue
Kerosene and domestic LP Gas and severely affected the supply of
essential commodities. His earlier criminal record indicated that he was a
habitual offender and despite the fact that police had arrested him for the
above mentioned offences on many occasions, he continued his illegal
activity of selling Blue Kerosene and domestic LP Gas and thus committed
offences under the Essential Commodities Act, 1955. The shortage of Blue
Kerosene and domestic LP Gas resulted in unrest among the common
people of the locality and it disturbed the peace and tranquility of the
society at large.
2. In support of the detention order, specific instances of six
::: Downloaded on – 09/06/2013 17:27:24 :::
4
cri-wp-1064-11
crimes registered against the detenu and in-camera statements of two
witnesses have been relied upon. C.R. No.3117 of 2010 and C.R. No. 3007
of 2010 were registered on 23/10/2010 and 28/1/2010 respectively with the
Faujdar Chawadi Police Station against the detenu, whereas C.R. Nos.3011
of 2009 and 3054 of 2009 were registered on 4/3/2009 and 3/8/2009
respectively with the very same police station. Other two CRs which have
been considered were registered in the year 2004 and 2001 which we need
not take into consideration. Though six CRs have been relied upon, even if
we find two such CRs registered against the detenu read along with the in-
camera statements of two witnesses, support the detention order, it would
not be necessary for us to examine the remaining CRs. It is well settled
that the illegal activities in the recent past with reference to the date of
detention would be relevant while scrutinizing the challenge to the order of
detention.
3. Undoubtedly, along with the order of detention, reasons for
detention and the copies of the documents relied upon while passing the
order of detention have been provided to the detenu along with their
translations.
::: Downloaded on – 09/06/2013 17:27:24 :::
5
cri-wp-1064-11
4. Though a number of grounds have been raised to challenge the
detention order, the learned counsel for the detenu has more particularly
pressed the following grounds:-
(i) That the seized material was Blue Kerosene could have
been supported by the C.A. Report and admittedly the
detention order stated that the samples of Blue Kerosene
seized on 23/10/2010 were sent to the Regional Forensic
Science Laboratory, Ganesh Khind, Pune and its report
was awaited. In the absence of the C.A. Report, there
was no material before the Detaining Authority to
believe that the seized commodity was an essential
commodity and, therefore, the order of detention is
without application of mind. It has been further claimed
that a copy of the C.A. Report ought to have been made
available to the detenu along with the order of detention
so as to make an effective representation at the earliest
and this failure has violated the guarantee provided
under Article 22(5) of the Constitution.
::: Downloaded on – 09/06/2013 17:27:24 :::
6
cri-wp-1064-11
(ii) The Detaining Authority has taken into consideration old
and stale cases from the year 2001 to 2009 and these
cases have no proximity in point of time. The
satisfaction of the Detaining Authority is, therefore,
vitiated and that itself will be sufficient to set aside the
order of detention.
(iii) It is duty of the Detaining Authority to apprise the
detenu his right to make a representation to the
Detaining Authority, the State Government and the
Central Government. However, in the order of detention
the detenu has not been apprised of his right to submit a
representation to the Central Government and merely the
address of the Secretary to the Government of India,
Ministry of Commerce and Civil Supplies, Department
of Civil Supply, Krishi Bhavan, New Delhi has been
given. This failure of the Detaining Authority has
undermined the right to make an effective representation
to the Central Government and hence the protection
under Article 22(5) of the Constitution has been violated.
::: Downloaded on – 09/06/2013 17:27:24 :::
7
cri-wp-1064-11
(iv) The representation submitted on 13/4/2011 to the
Government of India was not decided in time and no
final decision was communicated to him on the said
representation. This delay caused on the part of the
Central Government has also vitiated the order of
detention.
The learned counsel for the petitioner has relied upon the
following decisions of the Supreme Court in support of his challenge:-
(a) Kamleshkumar Ishwardas Patel vs. Union of India and
ors. [1995 (2) Mh.L.J. 381].
(b) Rajammal vs. State of Tamil Nadu and anr. [AIR
1999 SC 684].
5. In the reasons elaborately set out in the order of detention,
though six CRs have been considered, as noted earlier, it is not
necessary to take into consideration the stale CRs i.e. the CRs
registered in the year 2001 and 2004 against the detenu and even if we
do not take into consideration the other two CRs registered in the year
::: Downloaded on – 09/06/2013 17:27:24 :::
8
cri-wp-1064-11
2009, C.R. No. 3117/2010 and C.R. No. 3007/2010 registered against
the detenu could undoubtedly support the detention order.
On 23/10/2010, PI Kausadikar of Crime Branch, Solapur
City, along with two panchas and the informant and the raiding party
reached the spot at Murarji Peth, Dagdi Chawl, Near Shubham
Automobiles and apprehended the detenu who was trying to escape
after seeing police raiding party at about 1830 hrs. When the raiding
party reached the spot, it found two auto-rickshaw trolleys containing
five iron barrels and 33 iron barrels lying on the ground. This five iron
barrels were loaded in each auto-rickshaw trolley bearing Registration
Nos. MH-13-R-8919 and MH-12-AQ-7858. Each barrel had about
180 liters of Blue Kerosene which is distributed under Public
Distribution System and thus the total stock of kerosene seized at the
sport was 7740 liters. The seizure panchanama was drawn and the
barrels along with the kerosene and the two auto-rickshaws were sized.
C.R. No. 3117 of 2010 was registered for the offences punishable
under Sections 3 and 7 of the Essential Commodities Act, 1955. The
detenu was produced before the learned Chief Judicial Magistrate on
24/10/2010 and was remanded to police custody till 26/10/2010 which
::: Downloaded on – 09/06/2013 17:27:24 :::
9
cri-wp-1064-11
was again extended upto 29/10/2010. During the interrogation, he
disclosed the names of three of his other associates who were
subsequently taken into custody. On 4/11/2010 he was remanded to
magisterial custody and was subsequently released on bail, whereas
one of his associates by name Dada Ingale could not be arrested. It is
pertinent to note that the informant in this case was Shri Deepak
Dattatraya Chavan, Food Supply Inspector at “D” Division, Solapur
and he was dealing with distribution of kerosene in the public
distribution system day in and day out.
The second C.R. arose from the incident of 28/1/2010.
The complainant Shri Gulab Rasul Ghudubhai Shaikh was the Supply
Inspector, Zone -A, Solapur. The police party led by Shri N.S. Patil,
PSI, reached the lane of Ashok Cable Wires at Shinde Chowk and
raided an auto-rickshaw to which the detenu was selling LP Gas as
fuel with the help of electric motor into the fuel tank of auto-rickshaw
bearing Registration No.MH-13-AF-1456. The rickshaw driver and
the detenu were apprehended at the spot. During further enquiry, Shri
Tanaji Shinde, who was filling the fuel tank of the auto-rickshaw told
the raiding party that he was selling domestic cooking gas as fuel to
::: Downloaded on – 09/06/2013 17:27:24 :::
10
cri-wp-1064-11
auto-rickshaw drivers at Rs.50/- per Kg. since last 8 days and that the
detenu was the owner of that illegal business. The police seized the
auto-rickshaw bearing Registration No. MH-13-AF-1456, one LP Gas
cylinder, one electric motor with nylon pipe and regulator and one
electric weigh machine. C.R. No. 3007 of 2010 came to be registered
for the offences punishable under Sections 3 and 7 of the Essential
Commodities Act, 1955 and thus the auto-rickshaw driver – Tanaji
Shinde and his associate Chetan Vitthal Zipare came to be arrested.
The detenu was arrested on 29/1/2010 and was produced before the
learned Chief Judicial Magistrate, Solapur. He was in magisterial
custody till 12/2/2010 and was released on bail of cash surety of
Rs.5000/-. On completion of investigation, a charge-sheet has been
filed.
6. So far as the in-camera statements of witnesses are
concerned, the detention order has referred to witness “A” and
witness “B”. We have verified the record and the statement of witness
“A” was recorded on 1/2/2011 and verified on 14/2/2011, whereas
statement of witness “B” was recorded on 5/2/2011 and verified on
14/2/2011 by ACP, Division – I, Solapur. We are satisfied that there
::: Downloaded on – 09/06/2013 17:27:24 :::
11
cri-wp-1064-11
was sufficient material before the Detaining Authority, which material
he has considered, applying his mind and then passed an order and
while being aware that the detenu was released on bail. The activities
of the detenu were continuing in nature and he was causing severe
blows to the maintenance of supplies of essential commodities.
Section 3(1) of the Act states that any officer of the State
Government, not below the rank of the Secretary, duly empowered,
may, if satisfied, with respect to any person that with a view to
preventing him from acting in any manner prejudicial to the
maintenance of supplies of commodities essential to the community, it
is necessary so to do, make an order directing that such person be
detained. As per subsection (2) of Section 3, the Commissioner of
Police, wherever he has been appointed, may also exercise the powers
conferred under Section 3(1) of the Act. Explanation below
subsection (1) of Section 3 has set out the meaning of the expression
“acting in any manner prejudicial to the maintenance of supplies of
commodities essential to the community”. We have no doubt in our
mind that the material considered by the Detaining Authority and
particularly the two CRs registered in the year 2010 and two in-
camera statements recorded of the witnesses support the order of
::: Downloaded on – 09/06/2013 17:27:24 :::
12
cri-wp-1064-11
detention.
7. So far as right to representation is concerned, para 9 of
the reasoned order of detention reads thus,
“9. You are, further informed that you have a
right to make a representation to the State Government
against the order of detention and that you shall be
afforded the earliest opportunity to make such a
representation. Should you wish to make such a
representation, you should address it to the Secretary to
the Government of Maharashtra (Preventive Detention),
Home Department (Special), Mantralaya, Mumbai 400
032 and to the Secretary to the Government of India,
Ministry of Commerce and Civil Supplies, Department of
Civil Supply, Krishi Bhavan, New Delhi and submit it
through the Superintendent of the Jail where you have
been detained.”
This paragraph has two parts. In the first part it has been
stated that the detenu has a right to make a representation to the State
Government. In the second part the address of the Secretary to the
::: Downloaded on – 09/06/2013 17:27:24 :::
13
cri-wp-1064-11
Government of Maharashtra has been provided and in addition the
address of the Secretary to the Government of India, Ministry of
Commerce and Civil Supplies has also been provided to the detenu
and without any doubt to submit a representation through the
Superintendent of the jail where he has been detained. It was
contended by Mr. Tripathi, the learned counsel for the detenu that in
the first part of paragraph 9, the detenu was not apprised of his right to
make a representation to the Central Government and, therefore, the
order of detention is vitiated. In this regard, as noted earlier, he has
relied upon a Constitutional Bench judgment in the case of
Kamleshkumar Patel (Supra). We do not find much force in these
arguments. Admittedly, the detenu submitted a representation on
13/4/2011 to the Central Government and it came to be decided and
rejected on 25/5/2011. Mr. Nakhawa, the learned counsel for the
Union of India has placed before us a copy of the said order along with
the letter dated 24/6/2011 he has received from the Department of
Consumer Affairs, Government of India. Be that as it may, the
Department of Consumer Affairs called for the remarks from the
Government of Maharashtra vide its letter dated 5/5/2011 and they
were received on 9/5/2011. The representation was considered by a
::: Downloaded on – 09/06/2013 17:27:24 :::
14
cri-wp-1064-11
committee of three members in the Department of Consumer Affairs,
Government of India and by a reasoned order it came to be rejected.
Thus the petitioner has exercised his right to submit a representation to
the Central Government and too effectively.
8. A Constitution Bench, in the case of K. M. Abdulla
Kunhi and B.L. Abdul Khader vs. Union of India [1991 (1) SCC 476]
stated,
“It is a constitutional mandate commanding the
concerned authority to whom the detenu submits his
representation to consider the representation and dispose
of the same as expeditiously as possible. The words “as
soon as may be” occurring in clause (5) of Article 22
reflects the concern of the Framers that the representation
should be expeditiously considered and disposed of with a
sense of urgency without an avoidable delay. However,
there can be no hard and fast rule in this regard. It
depends upon the facts and circumstances of each case.
There is no period prescribed either under the Constitution
or under the concerned detention law, within which the
representation should be dealt with. The requirement,
however, is that there should not be supine indifference
::: Downloaded on – 09/06/2013 17:27:24 :::
15
cri-wp-1064-11
slackness or callous attitude in considering the
representation. Any unexplained delay in the disposal of
representation would be a breach of the constitutional
imperative and it would render the continued detention
impermissible and illegal.”
Thus, if the delay caused on account of any indifference
or lapse it would adversely affect further detention of the detenu. We
have perused the order dated 25/5/2011 rejecting the reprsentation
submitted by the detenu to the Central Government and we do not find
any compelling reason to hold that it was delayed or there was any
indifference or lapse on the part of the committee to decide the same.
9. Mr. C. D. Chaudhari, Under Secretary, Government of
Maharashtra, Home Department (Special), Mantralaya, Mumbai has
stated in his affidavit that the representation dated 13/4/2011 submitted
on behalf of the detenu was received on the same day in the evening
and there was a holiday on 14/4/2011. The remarks from the Detaining
Authority were sought by letter dated 15/4/2011 and were received on
20/4/2011 vide the Detaining Authority’s letter dated 19/4/2011. The
Under Secretary submitted his note to the Deputy Secretary on
::: Downloaded on – 09/06/2013 17:27:24 :::
16
cri-wp-1064-11
21/4/2011 and the Deputy Secretary, in turn, placed the same before
the Additional Chief Secretary (Home) on the same day. The
representation was rejected on 28/4/2011 and the order was
communicated vide letter dated 29/4/2011 to the detenu through the
Superintendent, Yerwada Central Prison, Pune. Reference to the
Advisory Board was made on 9/3/2011 and the Advisoary Board
rendered its opinion on 6/4/2011 and it was received in the Home
Department on 7/4/2011. The confirmation order was passed on
13/4/2011.
10. Now coming to the last ground that C.A. Reports were not
made available to the detenu, we have noted earlier that the
complainant for the raid on 20/3/2010 was the Food Supply Inspector
himself. He could not be said to be a person not familiar with Blue
Kerosene being sold under the public distribution system. The seizure
panchanamas which are in the file and which have been signed by two
independent witnesses have been perused by us. They specifically
state the seized liquid fuel as kerosene. The detenu is neither a
retailer, a whole-seller or a license holder for fair price shop from
which the kerosene is distributed. Kerosene is an essential commodity
::: Downloaded on – 09/06/2013 17:27:24 :::
17
cri-wp-1064-11
within the meaning of the Essential Commodities Act, 1955. During
two different raids, two panchanamas of seizure were drawn and they
are on record. The panch witnesses were different at each time and the
seized fuel is kerosene at the first instance and LP Gas cylinder at the
second time. Hence on these grounds also the challenge to the order
of detention has no substance.
11. In the premises, this petition must fail and the same is
hereby dismissed. Rule is discharged.
(U.D. SALVI, J.) (B. H. MARLAPALLE, J.)
::: Downloaded on - 09/06/2013 17:27:24 :::
