This petition challenges enforcement, implementation and execution of the order of detention prepared and sought to be served on the petitioner by the respondent No.3 under Sec.3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980( hereinafter referred to as 'PBM Act' for short).
The brief facts as arising from the petition are that an FIR being C.R.No.II-72 of 2011 was registered with Karelibaug Police Station, Vadodara, against the petitioner and his tenant, one Shaikh Ahmed Hussain, for the offences punishable under Secs.7 and 3 of the Essential Commodities Act in pursuance of a search at the godown No.21 of the petitioner by Supply Inspector, Baroda on 8-4-2011 contending that petitioner is the owner of godown from where goods of 28,138 of controlled articles were stocked by the tenant Shaikh Ahmed Hussain. Said tenant was arrested and was released on bail by the learned Magistrate. The petitioner on coming to know that his name was given by said tenant in his statement recorded by the police, the petitioner preferred a petition being Cri.Misc.Appln.No.6214 of 2011 for quashing of the complaint against the petitioner wherein stay was granted. However, since the petitioner came to know that the sponsoring authority has initiated action for getting the order of detention passed against the petitioner, this petition is preferred at a pre-execution stage.
It is to be noted that in the quashing petition filed by the petitioner, this Court vide order dated 1-8-2011 quashed the said complaint qua the petitioner.
An affidavit in reply was filed by the respondent No.3 contending that the petition filed by the petitioner was not maintainable at law. The present petition is filed with misconception of facts and law at the pre-execution stage of detention order. It is also contended that the petitioner is required to surrender before challenging the order of detention which is yet not served on him. It is further contended that since the detaining authority was subjectively satisfied after taking into consideration all the relevant materials placed before it including the documents relating to the offence registered against the petitioner that the activities of the petitioner is detrimental to the public wrong, order of detention was passed against the petitioner. It is also contended that the petitioner was absconding to evade execution of the order of detention and since the petitioner is evading the service and execution of the detention order passed under PBM Act and not a law abiding citizen, the present petition at a pre-execution stage is not tenable in law. It is further contended that the petitioner will have the grounds of detention after the detention order is effected. However, the petitioner cannot compel the authorities to disclose the grounds of detention before it is executed without surrendering to the authorities. It is further contended that interfering with the order at this stage without the petitioner surrendering to the authorities would defeat the very purpose of the PBM Act. It was, therefore, submitted that the petition was liable to be dismissed, particularly when the petitioner has absconded and the order of detention along with grounds of detention and other documents could not be personally served and could not be executed.
Heard learned Senior Counsel, Mr.Y.S.Lakhani for M/s S.G. Associates for the petitioner, learned Central Government Counsel, Mr.M.Iqbal A.Shaikh for the petitioner No.1 and learned Asstt. Government Pleader, Ms.C.M.Shah for the respondent No.2 and 3.
Learned Senior Counsel, Mr.Y.S.Lakhani, for the petitioner has submitted that the petition in the present format is maintainable and tenable both on facts as well as on law to substantively challenge the order of detention at a pre-execution stage in view of the decision of the Hon'ble Apex Court in the case of Dipak Bajaj V s. State of Maharashtra reported in (2008) 16 SCC page 14. According to him, the Hon'ble Apex Court considering its earlier decision in Alka Gadia's case and the objections taken at the pre-execution stage by the otherside on identical grounds has held that "we are of the opinion that the five grounds mentioned therein on which Court can set aside the detention order at pre-execution stage are only illustrative and not exhaustive."
Learned Senior Counsel, Mr.Y.S.Lakhani has further submitted that the very complaint, on the basis of which the order of detention has been passed, has been quashed qua the petitioner by this Hon'ble Court vide order dated 1-8-2011 passed in Cri.Misc.Appln.No.6214 of 2011 and hence, the representations sent by the petitioner ought to have been considered by the respondent authorities. It is therefore requested that the order of detention may be quashed and set aside.
Learned Central Government Counsel for the respondent No.1, Mr.M.Iqbal A. Shaikh and learned Asstt. Government Pleader, Ms.C.M.Shah, for the respondent Nos.2 and 3, on the other hand, have submitted that this petition is at the pre-execution stage without surrendering to the order of detention. It is further submitted that since the petitioner was absconding, an order was passed on 26-9-2011 declaring him as absconder in exercise of power under Sec.71(b) of PBM Act. Unless and until the petitioner surrenders, he would not be entitled to get the order as well as the grounds thereunder and the petitioner would not be entitled to copies of the same by filing the present petition. It is further submitted that it is for the Hon'ble Court to peruse the documents but the petitioner cannot insist the Hon'ble Court to place all the relevant materials relied upon by the detaining authority in passing the order of detention.
This Court has gone through the order of detention and other materials placed before this Court. This Court has also gone through the order dated 1-8-2011 passed by this Court in Cri.Misc.Appln.No.6214 of 2011 whereby the complaint qua the present petitioner was quashed and set aside. It has been held by this Court in the said quashing order that as per the statement of tenant Mr.Shaikh, the godown from where the controllable commodities were seized was given on rent to one Mr.Shaikh at a monthly rent of Rs.1500/-. It has also been stated by Mr.Shaikh that no rent receipt was issued by the owner of the godown nor was any agreement executed in this regard with the owner of the godown. It was revealed from the statements of other persons that many a time, one Mr.Shaikh came with the tempo and took things. It was therefore held by this Court that since the petitioner is only the owner of the godown and was not carrying on the business of controlling commodities, the complaint against him was quashed and set aside by this Court. In view of the fact that the the very complaint on the basis of which the detention order passed is quashed and set aside by this Court, the detention order passed relying on the said complaint would not have any significance. This aspect would have been considered by the detaining authority. Since this aspect has not been considered by the detaining authority, the subjective satisfaction arrived at by the detaining authority is vitiated and hence, the order of detention cannot be sustained and it requires to be quashed and set aside. Since the petition at a pre-execution stage succeeds on this ground alone, no other grounds are felt necessary to be dealt with by this Court.
Thus, the petition is allowed. The order of detention prepared and sought to be served on the petitioner by the respondent No.3 under Sec.3 of the PBM Act is hereby quashed and set aside. Rule is made absolute accordingly. Direct service is permitted.
[M.D.SHAH,J.] radhan Top