IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 11116 of 2001
For Approval and Signature:
Hon'ble MR.JUSTICE A.L.DAVE
============================================================
1. Whether Reporters of Local Papers may be allowed : NO
to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge? : NO
————————————————————–
HARSHAD DAHYABHAI PATEL
Versus
DISTRICT MAGISTRATE
————————————————————–
Appearance:
1. Special Civil Application No. 11116 of 2001
MR YOGESH S LAKHANI for Petitioner No. 1
MR JOSHI A.G.P.for Respondents No. 1-3
MS PJ DAVAWALA for Respondent No. 4
————————————————————–
CORAM : MR.JUSTICE A.L.DAVE
Date of decision: 10/01/2002
ORAL JUDGEMENT
The petitioner is detained under provisions
contained in Section 3 of the Prevention of Black
Marketing and Maintenance of Supply of Essential
Commodities Act, 1980 (‘P.B.M. Act’ for short), by
virtue of order passed by the District Magistrate,
Vadodara, on September 22, 2001, in exercise of powers
vested in him by Section 3 of the said Act and the
petitioner challenges the order of detention in this
petition preferred under Article 226 of the Constitution
of India on various grounds.
2.The grounds of detention dated September 22, 2001
served on the petitioner detenu indicate that five
persons other than the petitioner were found to have been
involved in theft of crude oil from underground pipe line
of O.N.G.C. lying between Gandhar/Ankleshwar at village
Anti, Taluka Padra. On August 29, 2001 several documents
including invoices were found from those persons and it
is found by detaining authority that the petitioner was
instrumental in providing those forged bogus bills and
thereby to have abetted the activities of the persons
named in the ground of detention in para 5 which is found
to be detrimental to the supply of essential commodities.
The detaining authority observed that it has considered
the possibility of resorting to alternative less drastic
remedy under the ordinary law but it was considered
inadequate because if such prosecution is launched, the
petitioner may apply for bail, may obtain bail and after
being released on bail may pursue the activities. The
detaining authority observed that the detenu is required
to be immediately prevented from pursuing his activities
and, therefore, the detention is the only effective
remedy available with the detaining authority and,
therefore, the order was passed.
3.The learned advocate appearing for the petitioner
has restricted his argument to the following contentions.
3.1.The detaining authority was not alive to the fact
that prosecution was already launched against the present
detenu along with the other persons named in para 5 of
the ground of detention which is indicated from
communication addressed to the District Supply Officer,
Baroda by Police Inspector, L.C.B. Baroda on September
21, 2001 which forms part of the compilation supplied to
the detenu. The learned advocate submitted that when
this document is supplied to the detenu, it necessarily
indicates that this was placed before the detaining
authority and still the detaining authority has observed
that taking steps under ordinary law is not possible when
in fact, the prosecution was already launched. This
indicates that the detaining authority has not properly
studied the papers before passing the orders. The
satisfaction recorded by the detaining authority
therefore would be vitiated and the order of the
detention therefore may be quashed.
3.2.Learned advocate Mr.Lakhani, also submitted that
the detaining authority was not aware about the fact that
the other accused persons had applied for bail and their
bail applications were rejected and, therefore, the
possibility of the petitioner applying for and getting
the bail considered by the authority was not proper. In
fact, the orders of rejection were not placed before the
detaining authority by the sponsoring authority and
therefore there was absence of complete material before
the detaining authority and therefore, the order is
passed in absence of such relevant material and,
therefore, the order would stand vitiated. Mr.Lakhani
urged that the petition may therefore be allowed.
4.Learned A.G.P. Mr. Joshi, opposes the petition
on behalf of respondents Nos.1, 2 and 3. Respondent No.4
is represented by learned counsel Ms.Davawala.
5.Affidavit-in-replies are filed by Deputy
Secretary to the Government of Gujarat as well as Under
Secretary in the Department of Consumer Affairs, Ministry
of Consumer Affairs, Food and Public Distribution, New
Delhi, which are taken on record.
5.1.Learned advocate Mr.Lakhani has placed on record
the copy of communication addressed to the D.S.O.
Vadodara by Police Inspector L.C.B. Vadodara (Rural) on
21.9.2001 which form part of the compilation supplied to
the detenu.
6.At the outset it may be recorded that it
transpired during the course of argument that the persons
named in para 5 of the ground of detention that is the
persons who are principally involved in the activities
were detained and have been released from detention as
their petition have been accepted by this Court. The
present petitioner is only alleged to have aided and
abetted the activity of the principal miscreants.
7.Apart from the above aspect the case before this
Court indicates that the detaining authority while
passing the order does not seem to have studied the
papers placed before it. The detaining authority has
observed that if steps are taken under ordinary law, the
detenu may apply for bail, may obtain bail and thereafter
may continue his illegal activities and, therefore, in
the opinion of the detaining authority steps under the
ordinary law cannot be the taken and the petitioner is
required to be detained under P.B.M. Act whoever in fact
as it is clear from the communication between the Police
Inspector L.C.B. and D.S.O. Vadodara, which forms part
of the compilation provided to the detenu (necessarily
meaning that it was placed before the detaining authority
for consideration) that prosecution was already launched
against the present detenu and that he was to be
arrested. Thus action under ordinary law was already
taken. It is clear from that communication that bail
application of the other miscreants was rejected by the
Court and they were in judicial custody. The
satisfaction of the detaining authority that the detenu
is likely to get bail and pursue the activities and
therefore detention is the only remedy was without any
basis. In this regard the decision of the Apex Court in
Amritlal v. Union Government A.I.R. 2000 S.C. 3675 can
be profitably be used.
8.In view of the above discussion the satisfaction
of detaining authority is found to be vitiated because of
non-application of mind and non-consideration of relevant
material. It vitiates the order in question. The order
therefore deserves to be quashed by allowing this
petition.
9.The petition is allowed. Order passed by
District Magistrate, Vadodara dated 22.9.2001 is hereby
quashed and set-aside. Detenu Harshad Dahyabhai Patel be
released from detention forthwith if not required in any
other case. Rule is made absolute. No costs.
(A.L. Dave, J.)
/phalguni/