1 By way of the present petition under Article 226 of the Constitution of India, the petitioner has challenged the detention Order bearing No.DTN-ECA-Case No.3/2012 dated 30/03/2012 passed by the respondent No.2 herein – District Magistrate, Rajkot District, 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 essential commodities 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 is licence holder issued by State of Gujarat and he is permitted to distribute liquid petroleum gas to card-holders at Fair Price Shop. Pursuant to the complaint received by the District Supply Office, a house of one Kaushikbhai Nagdanbhai Ahir was raided and from his house 15 cylinders of gas were found, out of which, 11 cylinders having 14.2 kgs. of Gas and 2 cylinders were empty and 2 cylinders were of private company and, therefore, the authority has recorded statement of said Kaushikbhai Nagdanbhai Ahir. As per his statement, he was not authorised to keep these cylinders but one Merambhai Arjanbhai, who was delivery man, has handed over the same to him. Thereafter, the Officer inquired into the matter and came to the conclusion that said Kaushikbhai Ahir and the petitioner posed conspiracy to sell the said cylinders to non-card holders in open market at higher price and ultimately a complaint was lodged on 20/03/2012 with Malaviyanagar Police Station of Rajkot City. A proposal was submitted by the authority to the concerned Officer to pass appropriate orders under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act,1980, to detain all these persons under the provisions of the said Act. After considering the material supplied by the sponsoring authority, the Competent Authority came to the conclusion that activities of the detenues are affecting the supply of essential commodities to the community and, therefore, they are required to be detained under the said Act.
2.2 After having come to know about the detention order, the petitioner filed petition being Special Civil Application No.7024 of 2012 before his detention and requested to quash and set aside the same. However, the same was withdrawn by the petitioner on 18/09/2012. Since during the pendency of the said petition, the petitioner was detained by the authority on 14/09/2012. After her detention, the present petition was filed by the petitioner. Pursuant to the order dated 08/11/2012, respondent No.2 – detaining authority has filed Affidavit-in-reply dated 05/12/2012.
3. Mr.Praful Bhatt, learned advocate appearing on behalf of the petitioner has raised various contentions challenging the detention order and submitted that the same is required to be quashed and set aside. However, he has mainly relied upon the ground of non-application of mind on the part of the Detaining Authority.
Learned Advocate Mr.Bhatt, 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 Malaviyanagar Police Station, which has been registered as CR No.I- 22 of 2012 on 20.03.2012, 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 the 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.Amita Shah, 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.2. 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 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.”
8 As per affidavit-in-reply filed by the Detaining Authority, the licence, which was issued in favour of the petitioner initially came to be suspended by the authority and, thereafter, it is cancelled. It is also pertinent to note that detention order qua co-detenue – Kaushikbhai Nagdanbhai Ahir and Merambhai Arjanbhai Lokhil are quashed and set aside by this Court by passing the order dated 12/07/2012 in Special Civil Application Nos.7289/2012 and 7291/2012.
In the present case, as stated here-in-above, the licence of the petitioner to run the fair price shop was initially suspended and thereafter it was 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 30/03/2012 passed by respondent No.2 herein - District Magistrate, Rajkot is 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.
sd/-
[A.J.DESAI, J.] *dipti