1. By way of the present petition under Article 226 of the Constitution of India, the Petitioner has challenged the order bearing No. 2/2012 dated 16.07.2012 passed by the District Magistrate, Junagadh in exercising of powers under Section 3(2) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, by which, he has been detained with a view to preventing him from acting in prejudicial manner to the maintenance of supplies of the commodities essential to the community.
2. The brief facts of the case are as under :-
2.1 The petitioner is a licence holder for running a fair price shop at village-Bantva, Taluka-Manavadar, District-Junagadh.
2.2 That on 01.07.2012, on information being received, the District Supply Officer, Junagadh, along with his team found a truck bearing Registration No. GJ-2-V-5626, having 100 gunny bags of wheat of 50 kgs each. The driver of the vehicle informed to the DSO that out of this 100 gunny bags, 20 gunny bags to be delivered to one Nareshkumar Longmal Tanwani, who is driving the rickshaw in the said area. Statement of Nareshkumar Longmal Tanwani was recorded and in his statement it came to the knowledge of the Supply Officer that one Prakashbhai Mohanlal Narwani, who is working as Manager with the present petitioner-detenue, had instructed to transport these bags to several places. The said out of this 100 gunny bags, 60 gunny bags were collected from the fair price shop which is running by the present petitioner detenue. After raiding the fair price shop belongs to the petitioner, it was found that he was acting contrary to the provisions of Essential Commodities Act and was carrying out activities prejudicial to the maintenance of supply of essential commodities. Several statements were recorded and ultimately the impugned order of detention dated 16.07.2012 came to be passed by the District Magistrate, Junagadh. Pursuant to the notice, the respondent No. 2 filed his affidavit in reply to oppose this petition.
4. Mr. D. M. Thakkar, Learned Advocate appearing for the petitioner has mainly argued that though the order of detention is bad in law, illegal, unconstitutional, null & void, he would submit on the ground of non-application of mind on the part of the detaining Authority in recording his subjective satisfaction for passing the detention order. He submitted that in absence of any material, which would satisfy Authority, who has passed the impugned order, it is totally non- application of mind on the part of the Authority.
He has submitted that the Detaining Authority has observed in the grounds of detention that the prosecution has been lodged under the provisions of Essential Commodities Act, 1955 and a complaint is lodged at Bantva Police Station, being CR. No. II 3035/2012 dated 11.07.2012, there are all possibilities that the detenue may get the bail order and continue his prejudicial activities. He submitted that there is no material to arrive at a such conclusion and therefore, the subjective satisfaction arrived at by the Detaining Authority is vitiated. It is also recorded on the grounds that there is an eminent need of passing detention order so as to stop the prejudicial activities of the detenue. He submitted that there is no material which would suggest that stock from any other shops have been diverted and/or not supplied to the persons concerned. There is no alternative remedy with the authority, in absence of any material placed before him. He has submitted that on one hand the authority himself has recorded in the grounds of the order that the licence which has been granted in favour of detenue to run a fair price shop has been suspended for three months from 03.07.2012, there was no reason for the Detaining Authority comes to the conclusion that the detenue would continue his prejudicial activities. When the licence of the detenue was suspended for 90 days from 03.07.2012 i.e. upto 03.10.2012, there was no need to pass the detention order. He has further submitted that the authority has cancelled the licence which was granted to the petitioner detenue to run the fair price shop. In support of his case, he has relied upon the case of Khimjibhai Nagjibhai Parmar vs. District Magistrate, Jamnagar & Ors. as reported in (2002) Cri.LJ 686 and submitted that the ratio laid down in the said case would squarely apply to the facts of the present case.
5. On the other side learned AGP Ms. Reeta P. Chandarana has opposed this petition and submitted that the High Court while exercising the powers under Article 226 could not sit over the findings of the Detaining Authority and evaluate the same. She has further submitted that considering the grounds of detention, it appears that the petitioner had indulged in such activities which is prejudicial to the maintenance of supplies of essential commodities. She, therefore, urged that the petition deserves to be dismissed.
6. I have heard learned Advocates appearing for the respective parties. I have also gone through the grounds raised by the petitioner chellenging his detention order and also perused the detention order along with grounds for detaining the petitioner as well as affidavit-in-reply filed on behalf of the Respondent No. 2.
7. In case of Khimjibhai (supra), the Detaining Authority has not considered alternative remedy in nature of taking action under the ordinary law instead of considering the provisions of preventive preventive detention law and has passed the detention order, therefore, this case would not be applicable in the present case since the authority has already lodged a criminal compliant against the petitioner detenue.
8. It is true that if a person is tried separately for the criminal offences, it would not debar the authorities from passing a detention order under the preventive detention law. However, when a case comes before the Court, the Court must ask in deciding its legality is: Was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the case of Rekha vs. State of Tamil Nadu, as reported at 2011 (4) RCR (Cri) 21, the Hon'ble Apex Court while dealing with the provisions of preventive detention with regard to dangerous activities of bootleggers, Drug Offenders etc., held that personal liberty of citizen can be protected when ordinary law is sufficient to deal with the case. The Apex Court in paragrahs 31, 32 and 37 of the said judgment held as under:-
“31 preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It follows, therefore, that if the ordinary law of the land (Indian Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.
32 Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is : Was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenue was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with his situation. Hence, in our opinion, for this reason also the detention order in question was illegal.
37 No doubt it has been held in the Constitution Bench decision in Haradhan Saha's case (supra) that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Articles 21 and 22 of the Constitution (which we have already explained). Articles 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the criminal law (Indian Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to.”
9. In the present case, as stated here-in-above, the licence of the petitioner to run the fair price shop was initially suspended and subsequently cancelled. It was not possible for petitioner detenue to run fair price shop and indulge in such prejudicial activities, which would lead the authority to pass the detention order under preventive detention law. Though, it is not a question of sitting over an appeal or appreciating the material collected by the Authority while passing the order, but, if the order is passed without having any material, which would lead to the subjective satisfaction of the Authority that the detenue shall continue his illegal activities, the court can certainly arrive at the conclusion that the subjective satisfaction arrived at by the Authority is vitiated. In the present case, there is no material on record which would establish that the Authority was right in arriving at the conclusion that the detenue shall continue his prejudicial activities. Hence in the above facts and circumstances, the petition requires acceptance and deserves to be allowed.
10. In the result, the petition is allowed. The impugned order of detention bearing No. 2/2012 dated 16.07.2012 passed by the Respondent No. 2 – District Magistrate, Junagadh, is quashed and set aside. The Detenue – Amrutlal Nandlal Lalvani is ordered to be set and liberty forthwith if he is not required to be detained in connection with any other case. Rule is made absolute accordingly. Direct Service is permitted.
(A.J. Desai, J.) bhati*