Vinodbhai Prakashbhai Khatik vs State of Gujarat and Others

Z.K. Saiyed, J.—The petitioner came to be detained under the Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act, 1980 (for short "PBM Act"), by virtue of order passed by the District Magistrate, Surat, on March 31, 2010, in exercise of powers u/s 3 of the said Act. The detaining authority found that the petitioner''s activities were prejudicial to the maintenance of supplies of commodities essential to the community and may result in black marketing of such commodities and, therefore, he is required to be immediately prevented from pursuing his activities by starting business in the name of his relative or associates. The detaining authority has further observed that if a complaint is lodged u/s 3 & 7 of the Essential Commodities Act, 1955, he may get himself released on bail or may obtain an injunction order and may continue his activities and, therefore, detention is the only effective remedy that can be resorted to. Ultimately, the order of detention was passed.

The said order is sought to be challenged in this petition under Article 226 of the Constitution of India on various grounds. However, learned Advocate Mr. Prajapati, appearing for the petitioner, has restricted his arguments to the ground that the detaining authority has arrived at subjective satisfaction on extraneous material in absence of any cogent or concrete material to support such a conclusion. The order is, therefore, without application of mind and would be vitiated. Learned Advocate has drawn the attention of this Court that in the grounds of detention, the detaining authority has stated that for the alleged irregularities, F.I.R. being CR No. II 58/2010 has been registered on 20.3.2010 with Kamrej Police Station and there is apprehension that the petitioner is likely to continue alleged unauthorized activities and, therefore, preventive detention is the only remedy to prevent the same. Learned Advocate has contended that it is not the subjective satisfaction of the Detaining Authority as to how the petitioner is likely to continue his alleged activities if he is arrested by the Police. He has contended that mere apprehension without there being any material in support of the same would show a total non-application of mind on the part of Detaining Authority. He also contended that the petitioner has not been supplied with the statements of material witnesses and non supply of those documents along with the grounds of detention would amount to violation of Article 22(5) of the Constitution of India. Mr. Prajapati has also contended that the petitioner does not know English, he cannot read, write and understand English. However, the document at Page No. 81 - F.S.L. Report, which has been relied upon by the Detaining Authority is in English and the petitioner has not been given translation of the said document in the language known to the petitioner and supply of a material document in the language unknown to the petitioner would amount to breach of Article 22(5) of the Constitution of India and, therefore, the impugned order is required to be quashed and set aside. This has infringed the rights of the detenu envisaged u/s Article 22(5) of the Constitution of India. The continued detention of detenu is therefore, vitiated. He may, therefore, be ordered to enlarged from the detention.

Respondent Nos. 1, 2 and 3 are represented by learned A.G.P. Mr. Janak Raval. He has filed affidavits of Detaining Authority as well as of Joint Secretary to the Government of Gujarat, Food, Civil supplies and Consumer Affairs Department. Respondent No. 4-Union of India is represented by Mr. Shaikh, learned Standing Counsel.

The petition is vehemently opposed to by learned A.G.P. and learned Standing Counsel for the Central Government. Learned AGP has contended that in the statement of the petitioner, recorded in presence of panchas, the petitioner himself has confessed the seized article to be "Blue Kerosene". He has contended that the papers asked by the petitioner has been forwarded to the petitioner on 24.2.2010, the date on which representation dated 22.2.2010 was received by the respondent. He contended that previous statement of the detenu having not relied upon by the detaining authority has not been supplied and, therefore, no prejudice is caused to the detenu. He has prayed that the petition may be dismissed.

Having regard to rival contentions, at the outset, it has to be noted that despite a close scrutiny of the affidavit in reply, this Court is not able to find any satisfactory explanation to support the observations made in the grounds of detention. Learned A.G.P. has failed to extend any plausible explanation to support the observations made in the grounds of detention. The observations made in the grounds indicate that the detaining authority recorded a satisfaction that resorting to detention under P.B.M. Act is the only remedy that can be resorted to in order to prevent the detenu from pursuing his activities. For coming to this conclusion, while considering lesser drastic remedy, the authority observed that if the license is cancelled or suspended, the detenu may create legal complications and may start business in the name of his relative or associates and may continue his activities. There is no material for drawing this conclusion. Likewise, the apprehension of the detaining authority that if a complaint is lodged under Sections 3 and 7 of the Essential Commodities Act, the applicant may get himself released on bail or may obtain an injunction and continue his activities. A similar question arose before the Apex Court in the case of Amritlal and Others Vs. Union Govt. Through Secy. Ministry of Finance and Others, where even though a prosecution was lodged and the detenu was arrested, but had not moved bail application, an inference that he is likely to move an application for bail was considered to be not sufficient material for exercising powers u/s 3 P.B.M. Act. Here, criminal complaint being CR No. II - 58 of 2010 dated 20.3.2010 has been filed against the petitioner before Kamrej Police Station and the investigation is going on, and, therefore, this inference for coming to a conclusion that detention under the P.B.M. Act is the only remedy that can be resorted to, cannot be accepted in law. Learned Advocate for the Petitioner has also contended that certain documents supplied along with the grounds of detention are partly illegible and the same would amount to non-communication of grounds of detention and, therefore, the continued detention of the petitioner has become violative of Article 22(5) of the Constitution of India.

It would therefore, be clear from the above discussion that the satisfaction recorded by the detaining authority is without any cogent material which must be available before drawing such an inference and the order therefore, cannot be permitted to stand.

In view of the above discussion, the contentions raised by learned advocate Mr. Prajapati deserve acceptance. The outcome is that the impugned order of detention cannot be permitted to stand. The petition deserves to be allowed.

The petition is allowed. The order of detention dated March 31, 2010, passed by the District Magistrate, Surat is quashed and set aside. The petitioner Vinodbhai Prakashbhai Khatik, be released from detention forthwith if not required in any other case. Rule is made absolute with no order as to costs. Direct service permitted.