{"id":211265,"date":"2010-04-30T00:00:00","date_gmt":"2010-04-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bharatbhai-vs-state-on-30-april-2010"},"modified":"2017-03-19T12:29:43","modified_gmt":"2017-03-19T06:59:43","slug":"bharatbhai-vs-state-on-30-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bharatbhai-vs-state-on-30-april-2010","title":{"rendered":"Bharatbhai vs State on 30 April, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Bharatbhai vs State on 30 April, 2010<\/div>\n
Author: H.B.Antani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/3646\/2010\t 2\/ 15\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 3646 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE H.B.ANTANI\n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=========================================================\n\n \n\nBHARATBHAI\n@ GOPAL BHAILALBHAI SHAH - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 2 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nYS LAKHANI FOR MR HR PRAJAPATI\nfor\nPetitioner(s) : 1, \nMR\nDIVYESH SEJPAL AGP\nfor Respondent(s) :\n1,2,3 \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.B.ANTANI\n\t\t\n\t\n\n \n\nDate\n: 30\/04\/2010 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
1.\tRule.\n<\/p>\n
Learned A.G.P. Mr.Divyesh Sejpal waives service of Rule for the
\nrespondents.\n<\/p>\n
2.\tBy
\nway of filing present petition under Article 226 of the Constitution
\nof India, the petitioner has prayed in paragraph 7(a) to issue a writ
\nof prohibition or any other appropriate writ, order or direction to
\nrespondent No.2 to place on record the order of detention and grounds
\nof detention and to quash and set aside the order of detention passed
\nby respondent No.2 at pre-detention stage as being illegal, invalid,
\nnull and void, arbitrary, without jurisdiction, passed in malafide
\nexercise of powers and violative of Articles 14, 19 and 21 of the
\nConstitution of India. The second prayer is with respect
\nto stay the further implementation and execution of the order
\nof detention passed by respondent No.2 upon the petitioner pending
\nthe admission, hearing and final disposal
\nof this petition. It is also prayed to restrain the respondent
\nauthorities from taking coercive steps against the petitioner pending
\nadmission, hearing  and final disposal of this petition.\n<\/p>\n
3.\tLearned
\nSenior Advocate Mr.Y.S.\n<\/p>\n
Lakhani for Mr.H.R. Prajapati for the petitioner submitted that the
\npetitioner is doing business in the name and style of M\/s.V.M. Shah
\nat Savli and has been engaged in the wholesale business of kerosene.
\nThe petitioner has been
\ngranted license for the same and he is carrying on the business since
\nlast 60 years. During the aforesaid period, not a single illegality
\nwas noticed by the Government Officers. It is submitted that Sardar
\nGrahak Sahkari Bhandar Limited is a registered Co-operative society
\n(for short,  the society ) under the provisions of Gujarat
\nCo-operative Societies Act and the said society has been granted
\nlicense to run a petrol and diesel pump situated at Patiya, village
\nBahutha, Tal. Savli. As per the case of the respondent-authorities,
\non 11.11.2009, vigilance squad of the State carried out raid at the
\ndiesel pump of Sardar Grahak Sahkari Bandar Limited. A panchnama was
\ndrawn and, at the time of inspection, following persons were found at
\nthe petrol pump.\n<\/p>\n
\t Sadikmiya Kasammiya Malek<\/p>\n
       (President
\n\tof the Society);\n<\/p>\n
\tUttamchand Shrimanchand
\n\tChaudhari<\/p>\n
 (Truck driver of Shreeji Transport);\n<\/p>\n
  iii.\n<\/p>\n
Bhupendrabhai Govardhanbhai Shah<\/p>\n
 (Working at diesel pump) and;\n<\/p>\n
  iv.\n<\/p>\n
 Patel Purshottambhai Laxmanbhai<\/p>\n
 (Clerk at diesel pump).\n<\/p>\n
\tDuring
\nthe inspection, stock of 4818 liters of diesel and difference in
\ndensity diesel was noticed. In view of the aforesaid fact, a
\npanchnama was made and samples were drawn. At the time of inspection,
\none truck bearing No.GJ-6-TT-4853 was standing at the diesel pump for
\ntaking fuel. The statement of truck driver was recorded as the
\nauthority doubted the behavior of the truck driver. The truck was
\nseized by order dated 11.11.2009. On 12.11.2009, F.I.R. in respect
\nthereof was registered as C.R.No.II-76 of 2009 for the offence
\npunishable under Sections 3 and 7 of the Essential Commodities Act,
\n1955 wherein, the petitioner has been shown as accused No.5.
\nSubsequently, Sections 465, 467, 468 and 120B of I.P.C. were added.
\nThe petitioner submitted bail application being Criminal Misc.
\nApplication No.1718 of 2009 before the learned District and Sessions
\nCourt, Vadodara and the learned Judge granted regular bail to the
\npetitioner vide order dated 11.12.2009. The District Supply Officer,
\nVadodara, vide letter dated 11.12.2009, informed the society
\nthat the samples drawn on 11.11.2009 from the petrol pump were tested
\nat F.S.L., Gandhinagar and, as per report dated 01.12.2009, the
\nsamples have been found as per the prescribed standards. Then, on
\n19.12.2009 and 20.12.2009, the inspecting team from Gandhinagar
\ncarried out surprise checking in view of the alleged incident. They
\nverified the entire record of last three months i.e. from October to
\nDecember, 2009 and during inquiry, nothing wrong was found. On
\n07.12.2009, the police submitted application before the trial court
\nfor cancelling the bail granted to
\nthose accused, who were granted regular bail on 16.11.2009 by the
\ntrial court. The said application was rejected by the trial
\ncourt vide order dated 07.01.2010. In the meanwhile, the Sessions
\nCourt, Vadodara was moved for cancellation of bail granted vide order
\ndated 16.11.2009 by filing Criminal Misc. Application No.1756 of
\n2009. Another application being Criminal Revision Application No.29
\nof 2010 has been filed before the learned Sessions Judge, Vadodara to
\nquash and set aside order dated 07.01.2010 whereby, the trial court
\nhad rejected the application for cancellation of bail and the same is
\npending. Thus, despite the fact that the F.S.L., Gandhinagar had
\ngiven clean chit to the petitioner and others and falsified the
\naccusations made by the police authority, the District Superintendent
\nof Police was keen to detain the petitioner and others under the
\nprovisions of Prevention of Black Marketing and Maintenance of
\nSupplies of Essential Commodities Act,1980 (for short,  the Act )
\nand sent letter dated 30.12.2009 for drawing samples again. Thus, the
\naction of the respondent of drawing the samples again for second time
\nis illegal and it was done with malafide intention. It is submitted
\nthat even the license granted to the petitioner was suspended for a
\nperiod of 90 days vide order dated 25.02.2010.
\nIt is submitted that recently respondent No.2 passed the order of
\ndetention under the said Act against the petitioner and as the
\npetitioner has not surrendered in pursuance of the order passed by
\nrespondent No.2, the same is not
\navailable with the petitioner. It is submitted that the action
\nof respondent No.2 is illegal, invalid, null and void and the same is
\nrequired to be quashed and set aside. The order of detention has
\nbeen passed with a view to punish the petitioner and not with
\na view to achieve the real goal under the P.B.M. Act and, therefore,
\nthe said order deserves to be quashed and set aside. Thus,
\nconsidering the fact that the order was passed with malafide
\nintention, the same cannot be sustained in the eye of law and it
\ndeserves to be quashed and set aside. The learned advocate placed
\nreliance on the following judgments in support of the submission that
\nif the order is ex-facie illegal then it deserves to be quashed and
\nset aside.\n<\/p>\n
1.\tGimik
\nPiotr V\/s. State of Tamil Nadu and others reported in (2010)1 SCC
\n609;\n<\/p>\n
2.\tVivekbhai Chhotubhai
\nContractor V\/s. State of Gujarat & Ors. reported in 1999(2) GLR
\n1120;\n<\/p>\n
3.\tDeepak Bajaj V\/s. State
\nof Maharashtra and Anr. reported in 2009(1)G.L.H. 140;\n<\/p>\n
4.\tRajesh Gulati V\/s.\n<\/p>\n
Government National Capital Territory of Delhi reported in
\n2002(0)GLHEL SC 22769 and;\n<\/p>\n
5.\tKaushalbhai Rameshbhai
\nDesai V\/s. District Magistrate, Surat reported in 2005(0)GLHEL-HC
\n206304.\n<\/p>\n
\tThe
\nlearned advocate placed reliance on the ratio laid-down in the above
\njudgments in support of the submissions canvassed at the bar. Thus,
\nthe learned advocate submitted that considering the averments made in
\nthe petition and ratio laid-down in the various judgments which are
\nreferred to at the time of oral submission, it is a fit case to quash
\nand set aside the order of detention passed by respondent No.2 and,
\nin the alternative, to stay
\nimplementation, operation and execution of the order of detention as
\ngrounds of detention at pre-detention stage, are illegal, invalid and
\nnull and void.\n<\/p>\n
4.\tLearned A.G.P. Divyesh
\nSejpal placed reliance on the affidavit-in-reply filed by
\nVijay Nehra, Collector and District Magistrate, Vadodara to
\ncontrovert the averments made in the petition. It is submitted by the
\nlearned A.G.P. that there is a basic difference between preventive
\ndetention and punitive detention. It is enumerated in Article
\n22(3)(b) of the Constitution of India that nothing in clause (i) and\n<\/p>\n
(ii) shall apply to any person who is arrested or detained under any
\nlaw providing for preventive detention. It is open for the detenu
\nafter surrendering to the jail authorities to take permissible legal
\ngrounds to challenge the order of detention. The learned A.G.P.
\nplacing reliance on the said Act, submitted that when the activity of
\nthe petitioner is detrimental under the Act, it is not a  private
\nwrong  but a  public wrong  and stay cannot be granted against
\ndetention of a person, who has committed the the  public wrong .
\nIn view of the catena of decisions, the petition even cannot be
\nentertained at the pre-detention stage and, therefore, the learned
\nA.G.P. has placed reliance on the following judgments:-\n<\/p>\n
1.\tAdditional
\nSecretary to the Government of India & Ors. V\/s. Smt Alka Subhash
\nGadia & Ors. Reported in 1992 Suppl. (1) SCC 496;\n<\/p>\n
2.\tShri
\nN.K. Bapna V\/s. Union of India reported in Judgments Today 1992(4) SC
\n49;\n<\/p>\n
3.\tSubhash Muljibhai Gandhi
\nV\/s. L.Himingliana and Anr. Reported in Judgments Today 1994(5) SC
\n358;\n<\/p>\n
4.\tVedprakash D. Chiripal
\nV\/s. State of Gujarat reported in 1987(2) G.L.H. 482(F.B.);\n<\/p>\n
5.\tPrashant Manubhai Vora
\nV\/s. State of Gujarat reported in 1993(1) G.C.D. 101 (D.B.) and;\n<\/p>\n
6.\tElesh Nandubhai Patel
\nV\/s. C.P.Sinh C.P. Ahmedabad reported in 38(2) 1997 (2) G.L.R. 1062.\n<\/p>\n
\tEven subsequently, by
\nvarious judgments, the view enunciated in the aforesaid judgments was
\nreiterated and taken by the Court. It is submitted that the petition,
\nat pre-execution stage is not maintainable wherein, the accused as on
\ntoday is not aware about the grounds of detention order. He has not
\neven made representation to the State Government or before the P.B.M.
\nAdvisory Board. Thus, on that ground alone, the petition deserves to
\nbe rejected. The learned A.G.P. further submitted that it is an
\nadmitted fact that on 11.11.2009, vigilance squad with Mamlatdar,
\nSavli visited the Mandli(Diesel pump) for an on the spot
\ninvestigation and at that time, there was a huge difference of 4818
\nliters found between the physical stock and the stock as per the
\nrecords. The variation in density was found to be more than the
\npermissible limits. After investigation, it was revealed that the
\nexcess stock was kerosene stock and that was brought from V.M. Shah
\ndepot and thereafter, F.I.R. being C.R.No.II-76 of 2009 was lodged.
\nIt was found from the statement of the petitioner dated 06.12.2009
\nbefore the police that he had supplied the stock of kerosene. At the
\ntime of raid, kerosene was filled in truck No.GJ-6-TT 4854 from tank
\nNo.2 which was shown dry on record. However, 7402 ltrs. of Kerosene
\nwas found in that tank. Hence, the stock was seized and the pump was
\nsealed. After recording the statements of witnesses and investigation
\nin the matter, the Superintendent of Police directed to take samples
\nin the presence of F.S.L. Officer, Police and Mamlatdar by letter
\ndated 30.12.2009. Thereafter,  the sample was taken and it was found
\nfrom the report that it was not as per the prescribed standard and
\nthe same was adulterated. Therefore, on 24.02.2010, the detention
\norder came to be passed under the provisions of the said Act against
\nMr.Sadikmiya Kasammiya Malek and Shri Vasantbhai C\/o Lalabhai Bapulal
\nShah. In pursuance of the said order, they were detained on
\n01.03.2010. During the investigation, it was revealed that the
\npetitioner was managing the society and even salaries of Chairman and
\nSecretary were paid by the petitioner. Therefore, there is no merit
\nin the contention raised by the petitioner that he is the only
\nnominee member in the society. Thus, considering the aforesaid
\naspect, the petitioner has not made out a case for grant of relief,
\nas prayed for in the petition and the petition deserves to be
\nrejected.\n<\/p>\n
5.\tHeard learned Senior
\nAdvocate Mr.Y.S. Lakhani for Mr.H.R. Prajapati for the petitioner and
\nlearned A.G.P. Mr.Divyesh Sejpal for the respondents. I have
\nconsidered the averments made in the affidavit-in-reply filed by
\nVijay Nehra, Collector and District Magistrate, Vadodara and
\naffidavit-in-rejoinder filed by the petitioner controverting the
\naverments made in the affidavit-in-reply and reiterating the
\naverments made in the petition. The judgments cited by the learned
\ncounsel of both the sides are carefully taken into consideration by
\nme. The petitioner is doing  business in the name and style of
\nM\/s.V.M. Shah at Savli and has been engaged in the wholesale business
\nof kerosene. The petitioner has been granted license by the licensing
\nauthority and has been engaged in the said business since last more
\nthan 60 years. As per the case of the respondent authorities, on
\n11.11.2009, the vigilance squad of State had carried out raid at the
\ndiesel pump of Sardar Grahak Sahkari Bhandar Limited. Panchnama was
\ndrawn and thereafter, Mamlatdar, Savli was informed. During the
\ninspection, excess stock of 4818 liters of diesel and difference in
\ndensity diesel was noticed and, therefore, panchnama in respect
\nthereof was prepared and samples were also drawn. At the time of
\ninspection, one truck bearing No.GJ-6-TT-4853 standing at the diesel
\npump for taking fuel was seized. The F.I.R. was registered on
\n12.11.2009 for the offence punishable under Sections 3 and 7 of the
\nEssential Commodities Act, 1955 and later on, Sections 465, 467, 468
\nand 120B of I.P.C. have been added in the F.I.R. The F.S.L. report
\ndated 01.12.2009 makes it abundantly clear that there was no
\nadulteration and the report was negative. However, on 20.12.2009, the
\ninspection team of Gandhinagar carried out surprise checking and they
\nverified the entire record of last three months. However, after
\nrecording statement of witnesses, considering the entire situation,
\nthe District Superintendent of Police,  sent a letter dated
\n30.12.2009 for drawing samples again. The report suggests that the
\nsample is not as per the standard prescribed and it was adulterated,
\nas the sample failed in kinetic viscocity test. Thereafter, the
\npetitioner was served with the notice and his license was ultimately
\nsuspended by the District Supply Officer on 25.02.2010 for a period
\nof 90 days with immediate effect. Respondent No.2 has exercised
\npowers under the provisions of the said Act. Considering the material
\non record of the case and in view of the catena of decisions rendered
\nby the Apex Court, the Court has very limited and narrow scope while
\nexercising the powers at the pre-execution stage. On perusal of the
\nrecord of the case, the Court has to be prima facie satisfied with\n<\/p>\n
(i) that the impugned order is not passed under the Act under which
\nit is purported to have been passed; (ii) that it is sought to be
\nexecuted against a wrong person; (iii) that it is passed for the
\nwrong purpose; (iv) that it is passed on vague, extraneous and
\nirrelevant grounds and (v) that the authority which passed it had no
\nauthority to do so. This principle has been laid-down by the Apex
\nCourt in case of Additional Secretary to the Government of India and
\nothers V\/s. Smt.Alka Subhash Gadia and another reported in 1992 Supp.
\n(1)SCC 496. The learned advocate for the petitioner has placed heavy
\nreliance on the judgment rendered in case of Deepak Bajaj V\/s. State
\nof Maharashtra and Anr. reported in 2009(1)G.L.H. 140 in support of
\nthe submission that it was held by the Apex Court in the said case
\nthat five grounds which are explained in case of Additional Secretary
\nto the Government of India and others V\/s. Smt.Alka Subhash Gadia and
\nanother reported in 1992 Supp. (1) SCC 496 are only illustrative and
\nnot exhaustive. In paragraphs 16 and 17 of the judgment in case of
\nDeepak Bajaj V\/s. State of Maharashtra and Anr. reported in
\n2009(1)G.L.H. 140, the Hon’ble Apex Court held as under:-\n<\/p>\n
 16. Shri Shekhar Nafade
\nlearned senior counsel for the State of Maharashtra submitted that
\nthe five conditions mentioned in Smt.Alka Subhash Gadia’s case
\n(supra) were exhaustive and not illustrative. We cannot agree. As
\nalready stated above, a judgment is not a statute, and hence cannot
\nbe construed as such. In Smt.Alka Subhash Gadia’s case (Supra) this
\nCourt wanted to lay down the principle that entertaining a petition
\nagainst a preventive detention order at a pre-execution stage should
\nbe an exception and not the general rule. We entirely agree with that
\nproposition. However, it would be an altogether different thing to
\nsay that the five grounds for entertaining such a petition at a
\npre-execution stage mentioned in Smt. Alka Subhash Gadia’s case
\n(Supra) are exhaustive. In our opinion they are illustrative and not
\nexhaustive.\n<\/p>\n
17. If a person against whom
\na prevention detention order has been passed can show to the court
\nthat the said detention order is clearly illegal why should he be
\ncompelled to go to jail? To tell such a person that although such a
\ndetention order is illegal, he must yet go to jail though he will be
\nreleased letter is a meaningless and futile exercise.\n<\/p>\n
6.\tHowever, in the present
\ncase nothing is shown to the Court that the detention order is
\nillegal. There is a huge difference of 4818 ltrs. of kerosene found
\nbetween the physical stock and the stock as per records. F.S.L.
\nreport also indicates that variation in density is more than
\npermissible limits. It is a well settled law that entertaining a
\npetition against the preventive detention order at a pre-execution
\nstage should be an exception and not the general rule. In view of the
\njudgment of Apex Court in case of Deepak Bajaj (Supra), since the
\nfive grounds mentioned in case of Smt. Alka Subhash Gadia’s case
\n(Supra) are not exhaustive but illustrative even on grounds other
\nthan the five grounds mentioned above, petition at a pre-execution
\nstage in my view cannot be entertained.\n<\/p>\n
7. Considering the ratio
\nlaid-down in the judgments cited by the learned counsel of both the
\nsides and on perusal of the entire record placed for my perusal, I am
\nof the view that the petitioner has not made out a case for grant of
\nrelief, as prayed for, in the petition and the petition is liable to
\nbe rejected.\n<\/p>\n
8.\tFor the foregoing
\nreasons, the petition is devoid of merits and the same is hereby
\nrejected. Rule discharged.\n<\/p>\n
\t\t\t\t\t\t\t(H.B.ANTANI,
\nJ.)<\/p>\n
Hitesh<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
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Gujarat High Court Bharatbhai vs State on 30 April, 2010 Author: H.B.Antani,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-211265","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nBharatbhai vs State on 30 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bharatbhai-vs-state-on-30-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bharatbhai vs State on 30 April, 2010 - 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