1 By way of the present petition under Article 226 of the Constitution of India, the petitioner has challenged the Order bearing No.FC/TAPAS/ATK/SR No.1 of 2012 dated 13.7.2012 passed by the respondent No.3–District Magistrate, Ahmedabad, 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 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 It is the case of the petitioner–detenue that the petitioner holds licence of fair price shop, bearing Licence No. FR- 16 and permitted to distribute kerosene. The petitioner states that the father of the petitioner was also holding a fair price licence, bearing No.06114 under the Public Distribution System and distributes essential commodities, namely, wheat, rice, sugar and kerosene and after his death, the said fair price shop was transferred in the name one of his brother – Rajkumar Gidwani.
It is the case of the petitioner that since the petitioner has been managing the fair price shop, he was sought to be arrested for preventive detention under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 by respondent No. 3 vide order dated 18.6.2009. The said order was quashed by this Court vide order dated 18.6.2009. Another detention order dated 30.11.2010 was passed against the petitioner which was also quashed and set aside by this Court vide order dated 6.10.2010.
In the present case, on 17.6.2012, on information received, the police officers have intercepted a truck bearing Regn. No. GJ-9-Z-701 wherein it was found 240 bags of wheat of 50 kgs each. It is alleged that the said wheat bags were part and parcel of public distribution system and the same were sought to be diverted from public distribution system to open market and sought to be sold to a flour mill. It is also alleged that at the time of interception of the said truck, a bill alleged to have been recovered of one Ghanshyam Trading Co. and it did not mention about the said wheat bags were either of the public distribution system or of the Food Corporation of India. Pursuant to which, a complaint came to be lodged by Rameshbhai Kalidas, a Head Constable, with Khokhra Police Station and the same came to be registered at CR No. I-93 of 2012 for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code as well as under Sections 3 and 7 of the Essential Commodities Act, 1955 against four persons including the present petitioner. It is alleged that the petitioner in connivance with his brothers, has collected said material from other fair price shop holders and the same were not sold to the ration card holders and same were sold at higher price. Therefore, the respondent No. 3 recorded his satisfaction so as to prevent the petitioner from acting in any manner which would be prejudicial to the maintenance of supplies of essential commodities, hence, the Authority has passed the impugned detention order under the Act.
3 Learned Advocate Mr. Mangukiya for the petitioner has mainly argued that though the order of detention is bad in law, illegal, unconstitutional, null and 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 the Authority who has passed the impugned order, it is totally non-application of mind on the part of the Authority. He has further 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 Khokara Police Station which has been registered at CR No.I-93 of 2012 on 17.6.2012, 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 such conclusion and therefore the subjective satisfaction arrived at by the Detaining Authority is vitiated. It is also further recorded on the grounds of detention that there is eminent need of passing of 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. He further submitted that the detaining authority while recording the subjective satisfaction overlooked the basic fact that all licenses of the shop holders have been cancelled there is absolutely no scope for diversion of supply and therefore the subjective satisfaction recorded by the detaining authority is vitiated and is nothing but it is malicious act on the part of the detaining authority. 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 ratio laid down in the said case would squarely apply to the facts of the present case.
4 On the other hand, learned AGP Ms. Reeta P. Chandarana, has opposed this petition and submitted that the High Court while exercising the power under Article 226 of the Constitution 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.
5 I have heard the learned Advocates appearing for the respective parties. I have also gone through the grounds raised by the petitioner challenging his detention order and also perused the detention order along with grounds for detaining the petitioner as well as the Affidavit-in-reply filed by the respondent No.3; rejoinder to the Affidavit-in-reply filed by the petitioner as well as the Affidavit-in-reply filed by the respondent No.3 to the amended petition. No affidavit in reply has been filed on behalf of the Central Government.
6 In the case of Khimjibhai (supra), the Detaining Authority has not considered the alternative remedy in nature of taking action under the ordinary law instead of considering the provisions of preventive detention law and has passed the detention order and, therefore, this case would not be applicable in the present case since the Authority has already lodged a criminal complaint against the petitioner detenue.
7 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 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.
8 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 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.
9 In the result, the petition is allowed. The impugned order of detention dated 13.7.2012 passed by the respondent No.3 - the District Magistrate, Ahmedabad, is quashed and set aside. The detenue – Kanaiyalal Gehimal Gidwani 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.
10 In view of the order passed in the main petition, Civil Application No. 9130 of 2012 in Special Civil Application No. 9203 of 2012 does not survive and stands disposed of as having become infructuous. Rule is discharged.
(A.J.DESAI, J.) pnnair