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SCA/1452/2010 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1452 of 2010
=========================================================
VISHNUBHAI
ARJANBHAI GAMARA - Petitioner(s)
Versus
DISTRICT
MAGISTRATE & 4 - Respondent(s)
=========================================================
Appearance
:
MR
VIJAY H PATEL for HL PATEL ADVOCATES
for
Petitioner(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1 - 2,
4,
MS JIRGA JHAVERI, AGP for Respondent(s) : 2, 5,
MR PS
CHAMPANERI for Respondent(s) : 3,
MRM IQBAL A SHAIKH for
Respondent(s) :
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 14/05/2010
ORAL
ORDER
(1) By way of filing the
present petition under Article 226 read with Articles 14, 20, 21 and
22(5) of the Constitution of India, the petitioner has prayed to
issue a writ of mandamus or a writ in the nature of mandamus or any
other appropriate writ, order or direction in the nature of mandamus
by quashing and setting aside the order of detention dated 3.2.2010
passed against the petitioner directing him to be detained in
exercise of powers conferred under Section 3(2) of the Prevention of
Black Marketing Maintenance and Supplies of Essential Commodities
Act, 1980 (hereinafter referred to as the Act ). The second
prayer is to direct the respondents not to detain the petitioner or
he may be released on bail in the event of his arrest in connection
with the detention order dated 3.2.2010 passed against him in
exercise of powers conferred under Section 3(2) of the Act and in the
alternative, it is prayed that if the petitioner is detained, then,
he may be released on bail on appropriate terms and conditions which
the Court may deem fit, just and proper.
(2) Mr Vijay H Patel,
learned advocate for the petitioner has challenged the order dated
3.2.2010 passed by respondent No.1 in exercise of powers conferred
under Section 3(2) of the Act. As per information of the petitioner,
respondent No.4 raided few godowns situated at Jetalpur Marke Yard of
Ahmedabad Agriculture Produce Market Committee (hereinafter referred
to as the APMC for sake of brevity), wherein some quantity of
sugar was seized from different godowns. It is also found by
respondent No.4 that the stock of sugar seized by him belonged to
either two persons or the firm of two persons, namely, Mahavirprasad
Jain and Arunkumar Jain. It was also found that the aforesaid numbers
of godowns were owned by the aforesaid two persons Mahavirprasad Jain
and Arunkumar Jain, wherein rest of the godowns were belonging to
different persons. The said two persons, namely, Mahavirprasad Jain
and Arunkumar Jain are ordered to be detained by respondent No.1 and
the petitioner is also one of such person against whom the order of
detention is passed. It is submitted that the petitioner is a student
studying in 3rd year B.A. with Gujarat Commerce and
Science College, Ahmedabad and he even did not start his business at
Jetalpur Market Yard like so many other licence holders and the
shop-cum-godown at Jetalpur Market Yard remained vacant. The order of
detention which is passed against the petitioner is without
application of mind because there is nothing on the record to suggest
that the said two persons, namely, Mahavirprasad Jain and Arunkumar
Jain had ever met the petitioner and they know each other or the
petitioner has rented the godown knowing well that the said two
persons were having the stock of sugar in contravention of the sugar
control orders. If the order of detention passed against the
petitioner is allowed to be executed, then, it will cause serious
prejudice to the fundamental rights of the petitioner guaranteed
under Articles 14 and 21 of the Constitution of India.
(3) The learned advocate for
the petitioner has placed reliance on the order passed in the case of
Shardulbhai Khengarbhai Bharwad in Special Civil Application No.1256
of 2010 (Coram : M.D.Shah, J.) in support of the submission that the
prayer to release the petitioner on bail deserves to be considered
and necessary order in that regard be passed if the petition for
arrest against the pre-execution stage is not allowed. The learned
advocate for the petitioner also submitted that the petitioner has
made a representation dated 8.2.2010 to respondent No.3 for quashing
and setting aside the order of detention, but the same has not been
considered. In view of the aforesaid facts and circumstances of the
case, the prayer as set out in the application deserves to be
granted.
(4) Ms Jirga Jhaveri,
learned AGP for respondent Nos.2 and 5 submitted that no right of the
petitioner under Articles 14 or 21 of the Constitution of India has
been violated because of the action or inaction on the part of the
respondents and therefore, the petition itself is not maintainable in
law and it deserves to be dismissed in limine. It is submitted that
there is a basic difference between preventive detention and punitive
detention. The preventive detention is in the semantic formation of
the word preventive detention itself is suggestive of detention
before any other detrimental activity of the detenu is committed. It
would be open for the detenu after surrendering to take permissible
legal grounds to challenge the order of detention before the Court
and as the petitioner was indulging in the activities which is
detrimental to the society and as it is a public wrong, the stay
cannot be granted as prayed for in the petition. The learned AGP has
placed reliance on the judgment rendered in the case of Additional
Secretary to the Government of India and others Vs. Smt. Alka Subhash
Gadia and another, reported in 1992 Supp.(1)
SCC 496 and submitted that the petition itself is not
maintainable at the stage of pre-execution where the accused is as on
today not aware about the reasons of the detention order. It is
submitted that on 13.1.2010, godown No.54 was sealed in presence of
Mahavirprasad Jain. On 15.1.2010, godown No.54 was inspected by the
District Supply Officer as well as Mamlatdar Daskroi in presence of
authorised officer of Mahavirprasad Jain and it was revealed from the
investigation that ownership of the sugar was of Vardhman Agency Pvt.
Ltd. and 1,78,850 kgs. of sugar was found from the godown for which
Mahavirprasad Jain was not holding any licence or permit for stocking
sugar in the market yard. The petitioner has not produced any
evidence to show that he was not doing any business in the market
yard as alleged and as the petition is at the pre-execution stage, it
does not call for interference and it deserves to be rejected.
(5) I have heard Mr Vijay H
Patel, learned advocate for the petitioner and Ms Jirga Jhaveri,
learned AGP for respondent Nos. 2 and 5 and considered the averments
made in the petition as well as the compilation which is produced by
the learned advocate for the petitioner and the learned AGP for my
perusal. The detailed affidavit in reply filed by the District
Magistrate, Ahmedabad controverting the averments made in the
petition and the affidavit in rejoinder filed by the petitioner
reiterating the averments made in the petition has been carefully
considered by me. This petition is filed at pre-execution stage and I
am also aware of the catena of decisions, more particularly the
judgment rendered in the case of Additional
Secretary to the Government of India and others Vs. Smt. Alka Subhash
Gadia and another (supra) and the exceptions carved out
therein. Considering the five exceptions as laid down in the
aforesaid judgment, the case of the petitioner in my considered view
would not fall in those exceptions. The said exceptions are as
under:-
(i) That the impugned order
is not passed under the PASA Act under which it is purported to have
been passed.
(ii) It is sought to be
executed against the wrong persons.
(iii) It is passed for the
wrong purpose.
(iv) It is based on the
vague, extraneous and irrelevant grounds, and
(v) The authority which
passed it had no authority to do so.
Thus the principle laid
down by the Apex Court in the case of Additional Secretary to the
Government of India and others Vs. Smt. Alka Subhash Gadia and
another (supra) has been adhered to and followed by the competent
authority and since the matter is at the pre-execution stage and
considering the material on record of the case, I am of the view that
no relief as prayed for to stay the pre-execution of the detention
order dated 3.2.2010 requires to be passed in the present case.
(6) It has been strenuously
urged by the learned advocate for the petitioner that in the
alternative if the order is not stayed, then, he be released on bail
during pendency on appropriate terms and conditions which the Court
may deem fit, just and proper. The learned advocate for the
petitioner has also placed reliance on the order passed by the
Coordinate Bench of this Court in the case of Shardulbhai Khengarbhai
Bharwad in Special Civil Application No.1256 of 2010 (Coram:
M.D.Shah, J.). However, considering the fact that the material which
is placed for my perusal and in view of the ratio laid down in the
case of Additional Secretary to the Government of India and others
Vs. Smt. Alka Subhash Gadia and another (supra), there is no merit in
the petition preferred by the petitioner challenging the order of
pre-detention dated 3.2.2010 and therefore, the petition in my view
is liable to fail and it is hereby dismissed. Rule is discharged.
[H.B.ANTANI,
J.]
mrpandya
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