1. By way of this petition under Articles 14, 21 and 226 of the Constitution of India, the petitioner has challenged the order bearing No.DTN/PBM/SR/21/2012 dated 10/07/2012 passed by respondent No.2 herein - District Magistrate, Vadodara, in exercise 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 on several grounds with a view to preventing him from acting in prejudicial manner to the maintenance of supplies of the commodities essential to the community.
2. It is the case of the petitioner – detenue that the petitioner holds licence for fair price shop and permitted to distribute kerosene to the ration card holders. It is the case of the petitioner that Authority has passed the impugned order relying upon the statement of Mohanbhai Somabhai Bariya, who is Driver of the Tempo, having registration No.GJ-6-VV- 6694 that the petitioner had handed over 440 Ltrs. of kerosene to transport the same, for which, the petitioner had been granted licence to distribute the same. Relying upon the statement of the Driver, the impugned order has been passed by the Authority without any other materials except the statement of the Driver.
3. Mr.Shaikh, learned advocate appearing on behalf of the petitioner has taken me through the impugned order along with grounds of detention and documents attached with the same and submitted that Detaining Authority has failed in arriving at the subjective satisfaction that there are all possibilities of continuing such illegal activity if he is not detained under the provisions of the said Act. He has submitted that when the Tempo, which was driven by Mohanbhai Somabhai Bariya was intercepted by the Authority, 440 Ltrs. of Kerosene was found and after initial inquiry an offence punishable under the Essential Commodities Act came to be registered on 28/06/2012 by the Authority. Pursuant to the said offence, petitioner was arrested and subsequently released by the Competent Court. He has submitted that because of this incident, his licence has been suspended. Learned advocate appearing for the petitioner has submitted that though the Authority has already lodged the complaint and has suspended the licence, no Authority has come to the conclusion that the petitioner shall continue his illegal activity of selling the kerosene and, therefore, he requested to quash and set aside the impugned order. In support of his above submission, he has relied upon the decision rendered in case of Pradipkumar Ramsamuj Jaiswal V/s. State of Gujarat decided on 27/10/2010 in Special Civil Application No.8144 of 2010 and submitted that the case is covered under the said judgement.
4. On the other hand, learned Assistant Government Pleader Mr.Mihir Bhatt, has opposed this petition and submitted that considering the grounds of detention, it appears that the petitioner had indulged in such activities which is prejudicial to maintenance of supplies of essential commodities and particularly kerosene, for which, he is given licence to distribute kerosene to the members of the lower strata of Society. It was further argued that because of FIR is lodged, the authority has not barred from passing the detention order under the preventive detention law. An affidavit has been filed by the Collector, Vadodara opposing the present petition.
5. Having heard learned advocates appearing on behalf of the respective parties and having gone through the order impugned in the petition, the order itself reflects the facts, which are admitted by learned advocate for parties that the authority has relied upon the statement of the driver of the Tempo, from which, 440 Ltrs. kerosene were found when it was being transported to some other place. It is also an admitted position that the licence issued in favour of the petitioner is already suspended and the petitioner has been released on regular bail with regard to the offence/ incident, which is relied upon by detaining authority while passing the detention order. Except this, there is no material on record by which the authority has come to the subjective satisfaction that if he is not detained under the provisions of the Act, he shall continue his illegal activities. In absence of sufficient material, the subjective satisfaction arrived at by the Detaining Authority is vitiated. Hence, the order of detention is required to be quashed and set aside and the same is quashed and set aside.
6. It is true that if a persons 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 paragraphs 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.”
7. In the present case, as stated here-in-above, the licence of the petitioner to run the fair price shop was suspended. 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 deciding the writ petition, but, if the detention order is passed without having any material, which would lead to 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 is deserves to be allowed.
8. In the result, the petition is allowed. The impugned order of detention dated 10/07/2012 passed by respondent No.2 - District Magistrate, Vadodara is hereby quashed and set aside. The detenue is ordered to be set at 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.] *dipti