Allowed

Trikam Kalabhai Sheladiya v. State of Gujarat

Gujarat HC17 Oct 2018SCA/10367/2018

Case brief

AI extract

What is this about?

Challenge to a preventive detention order passed under the Prevention of Black Marketing Act after a fair-price shop was found to be run on 210 bogus ration cards. The High Court quashed the detention, holding that the detaining authority did not apply its mind to the prior suspension of the petitioner's licence or to the possibility of criminal prosecution serving the purpose instead.

What did the court decide?

Impugned order of detention No. DTN/ECA/2/2018 dated 18.06.2018 passed by the District Magistrate, Amreli, quashed and set aside; Rule made absolute with no order as to costs.

Trikam Kalabhai Sheladiya Vs State of… — Constitutional and Fundamental Rights | Gujarat HC (2018)

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C/SCA/10367/2018 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 10367 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE A.J. SHASTRI

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?	YES
2 To be referred to the Reporter or not ?	YES
3 Whether their Lordships wish to see the fair copy of the judgment ?	NO
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	NO

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========================================================== TRIKAM KALABHAI SHELADIYA

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Versus

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STATE OF GUJARAT & 4 other(s)

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Appearance:

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MR AMIT N CHAUDHARY(5599) for the Petitioner(s) No. 1 GOVERNMENT PLEADER(1) for the Respondent(s) No. 5 MR DEVANG VYAS(2794) for the Respondent(s) No. 4 RULE SERVED BY DS(65) for the Respondent(s) No. 1,2,3

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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

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Date : 17/10/2018

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ORAL JUDGMENT

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The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs:

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“A) YOUR LORDSHIPS may be pleased to issue a writ of Mandamus order direction to the detaining authority to release the petitioner from the illegal detention who is kept in the District Jail, Nadiyad.

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B) YOUR LORDSHIPS may be pleased to quash and set aside the order of detention passed by the District Magistrate, Amreli on 18/06/2018 vide order No.DTN/ECA/2/2018 at Annexure A to the present petition.

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C) Pending hearing and final disposal of present petition direct respondents authority to stay the order of detention passed by the District Magistrate, Amreli on 18/06/2018 vide order No.DTN / ECA / 2/ 2018 at Annexure A to the present petition.

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D) Your Lordships be pleased to pass any other and further order as may be deemed fit in favour of the petitioner.”

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The premise on which the present petition is brought before the Court is that petitioner is residing in village Shedubhar having a fair-price shop with a license in his name granted under the provisions of Essential Commodities Act, 2004 which is situated at House No.816 of Shedubhar, Tal.Dist.Amreli. The petitioner is distributing essential commodities to Below Poverty Line Card holders since about 14 years by now. The petitioner is earning his livelihood from this shop situated at Amreli. It is further the case of the petitioner that raid was carried out at the fair-price shop of one Mansukhbhai Bhurabhai situated at Village Lapdiya and Rikadiya in the month of June, 2017 and authority found some irregularity and illegality. As a result of this, fair-price license of said Mansukhbhai Bhurabhai stood cancelled by the authority. The Supply Inspector (Mamlatdar- Amreli) handed over the charge of said shop of Mansukhbhai to the petitioner on 08.06.2017 despite the fact that

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petitioner was not agreeable to have that charge. However, the petitioner has contended that Mamlatdar, Amreli has given a security that there is no need to remain personally present in the shop and the other person would handle the shop. Upon such, the petitioner has to give his signature at the supply offers. It has further been asserted by the petitioner that on 23.02.2018, a further raid was carried out at fair-price shop of Village Lapdiya and Rikadiya on 23.02.2018 and illegality was found that Manshukhbhai was working in these both shops through charge which was handed over to the petitioner. The statement of worker was recorded during the course of raid and further inquiry was initiated. The petitioner submits that thereafter there is a raid carried out further at the fair-price shop at Village Shaed but not a single illegality was found. It has been stated by the petitioner that there are forged and fabricated card holders totalling to an extent of 216 found in village Lapadiya and Rikadiya during the course of inquiry and serious several irregularities have been noted down of not maintaining the price list not keeping a complaint book demo of shop is not reflected. There was no electric weigh-scale found, kerosene stock-register is not properly maintained. There was lack of cleanliness found in the shop and several other irregularities are found which have led Mamlatdar, Amreli to lodge the complaint being I-C.R.No.51 of 2018 at Amreli Taluka Police Station on 16.06.2018 for the offence punishable under Section 6 of the Essential Commodities Act against the applicant along with other accused persons. It has further been asserted that the petitioner was released on regular bail by the court below and on the basis of such FIR, the petitioner has been detained under sub-section (2) of

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Section 3 of the Prevention of Black Marketing of Supply of Essential Commodities Act on 18.06.2018 vide order No. DTN / ECR / 2/ 2018 and the petitioner was sent to the District Jail, Nadiad. It is this order of detention is made subject matter of Special Civil Application on various grounds.

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The Court, while perusing the averments contained in petition, was pleased to admit the petition vide order dated 09.07.2018 and directed the office to place this petition for final hearing in seriatim considering the actual date of detention. As a result of this, the petition came up for consideration finally before this Court.

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Mr.H.R.Prajapati, learned advocate appearing with Mr.Amit Chaudhri, learned advocate has represented the petitioner and has tendered the written submissions in respect of present petition and correspondingly learned Assistant Government Pleader has also submitted the written submissions and the matter after completion of arguments was put up for orders and with this background the petition has been taken up for final hearing. Learned advocate Mr.Prajapati appearing on behalf of the petitioner has vehemently contended that the detention order which has been passed on 18.06.2018 is based upon the inspection which has been carried out by the officers of respondent authority which has turned up to be in filing of the FIR being I-C.R.No.51 of 2018. The allegations which are levelled against the petitioner are not such which would visit the petitioner with an action of detention. It has been stated that pursuant to the filing of FIR being I-C.R.No.51 of 2018 the

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petitioner was arrested on 17.06.2018. The Investigating Officer has submitted an application on 18.06.2018 for seeking remand against the petitioner for the period of ten days. The learned Magistrate granted remand upto 21.06.2018 and the petitioner was directed to be produced before learned Magistrate on 21.06.2018 at 12:00 noon. On his production before the learned Magistrate, the petitioner filed an application for bail on 21.06.2018 but the same was not pressed as was not maintainable before the learned Magistrate. Resultantly, the petitioner submitted bail application being Criminal Miscellaneous Application No.477 of 2018 before the learned Sessions Court at Amreli and the same was granted vide order dated 26.06.2018 and by narrating this a contention is raised by the petitioner that the Detaining Authority has executed the order of detention while the petitioner was in custody and the Detaining Authority was not aware about the same. By raising this contention, a submission is made by learned advocate Mr.Prajapati that in view of catena of decisions, the authorities are expected to observe while passing an order of detention validly against the person. The authority must be aware about the fact that concerned detenue is actually in custody, the authority must be satisfied and has reason to believe that on the basis of reliable material placed before it, there is a real possibility of his being released on bail and that on being so released he would in all probability indulge into prejudicial activities and if it is felt essential to detain him, to prevent him from doing such activities, if the authority passes an order, after recording its satisfaction in this regard, such an order cannot be struck down on the ground that proper course for authority was to oppose the bail and if bail is granted,

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notwithstanding such position to question it before higher court. For this submission, learned advocate has relied upon following decisions:

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(i) (2015) 16 SCC 253, Champion R. Sangma vs. State of Meghalaya;

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(ii) 2004 (1) GLH 57 (SC), Union of India vs. Paul Manickam;

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(iii) 1992 (1) SCC 1, Abdul Sathar Ibrahim Manik vs. Union of India and

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(iv) 1991 (1) SCC 128; Kamarunnissa vs. Union of India

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4.1 Additionally, it has been contended that the Detaining Authority has failed to take into consideration the vital and important aspect of the matter which has a direct bearing upon detention of the petitioner. It has been submitted that license of fair-price shop of the petitioner has been suspended by Licensing Authority vide order dated 24.05.2018 for a period of 90 days during the inquiry whereas order of detention is passed on 18.06.2018 and, therefore, the satisfaction is completely missing as to how the petitioner is likely to continue his alleged activities in near future despite the suspension of a license. The very purpose of preventive detention is to prevent the person from continuing his alleged activity in near future and since the license has already been suspended, there is no likelihood of petitioner being continued with such activity especially when the order of detention is passed just within few days i.e. 18.06.2018 and, therefore, very purpose of detention gets frustrated on account of such action on

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the part of the authority. It has further been submitted that there is no sufficient material available with the authority to arrive at a satisfaction that ordinary law will not prevent the petitioner from indulging into such activity again and the detailing authority has also failed in taking into consideration that suspension of license may not be sufficient remedy to prevent the alleged activities. Therefore, non-consideration of such vital aspects would vitiate the very subjective satisfaction of detaining authority. Resultantly, on this ground alone petition deserves to be allowed. The alternative measure to be taken against the petitioner to prevent him from indulging in such kind of activity is not at all considered by the authority and hence relying upon following decisions, the contention is raised that no case is made out by the detaining authority.

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(i) 1983 (2) GLR 849 (DB), Dalpatbhai Bhikhabhai Patel vs. District Magistrate, Surat

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(ii) 1998 (1) GLR 710, Harsukhbhai Jasubhai Joshi vs. District Magistrate

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(iii) 1999 (1) GLH 145, Upendrabhai Jasubhai Joshi vs. District Magistrate

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(iv) 1999 (1) GLH 432, Musabhai Sodha vs. State

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(v) 1999 (2) GCD 1163, Sangitaben Atulkumar Patel vs. District Magistrate and

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(vi) 2002 Cri.L.J. 686, Khimjibhai Nagjibhai Parmar vs. District Magistrate

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4.2 Mr.Prajapati, learned advocate has further contended that

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written representation was submitted to the authority i.e. respondent no.2 on 04.07.2017 requesting the authority to revoke the order of detention on the grounds which are narrated in the representation. As per settled position of law, detaining authority is under obligation to satisfy as to what has happened to said representation. In what manner the representation was dealt with by Respondent No.2 and failing to explain such circumstance would tantamount to violate Article 22(5) of the Constitution of India, in turn, therefore, the continued detention of the petitioner would be violating Article 21 as well. The detaining authority was under an obligation to forward said representation on 04.07.2018 to the Advisory Board and if the Advisory Board fails to forward the said representation even to the other concerned authorities for their consideration, the continued detention is violative of Article 22(5) of the Constitution of India. This has not been satisfied by the authority. As a result of this, Article 22(5) of the Constitution of India gets violated by continuing the detention of the petitioner and for that purpose following are decisions referred to by learned advocate for the petitioner.

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(i) (2013) 4 SCC 435; Abdul Nasar Adam Ismail through Abdul Basheer Adam Ismail versus State of Maharashtra;

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(ii) (2012) 11 SCC 745, Rashid Kapadia vs. Medha Gadgil (iii) (2011) 10 SCC 781, Ummu Sabeena vs. State of Kerala

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4.3 It has further been contended that Detaining Authority are always expected to apply their mind and to show their awareness

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in regard to the ground of detention, the contents of release of such person on bail and stating necessity of keeping such person in detention under the preventive detention and in view of observation made in para:14 by a decision in the case of Birendra Kumar Rai vs. Union of India reported in 1993 (2) GLH 617 , a submission is made that continued detention in this set of circumstance is completely illegal and petitioner deserves to be released forthwith. Mr.Prajapati, learned advocate has further submitted that the Apex Court in a decision in the case of Haradhan Saha vs. The State of West Bengal reported in (1975) 3 SCC 198 has held that in case of preventive detention, the order is passed under Maintenance of Internal Security Act, 1971 in which distinction between preventive detention and proceedings was sought to be defined and it was held that essential concept of preventive detention is that detention of petitioner is not to punish him for something which has done but to prevent him from doing it and, therefore, also this very important aspect is not at all considered appropriately by the authority, the petitioner detention deserves to be quashed. It has further been submitted that gravity of an offence is irrelevant in preventive detention matter. Preventive detention is serious inrod to liberty of a person, the procedural safe-guard is only protection available to him and, therefore, strict compliance thereof is necessary. The Apex Court, as contended by Mr.Prajapati, learned advocate, has laid down such propositions in decisions in the case of Smt. Icchu Devi Choraria vs. Union of India reported in (1980) 4 SCC 531, in the case of Kamleshkumar Ishwardas Patel vs. Union of India reported in (1995) 4 SCC 51 and in the case of Kundanbhai Dulabhai Shaikh

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and Rekha vs. State of Tamil Nadu reported in (2011) 5 SCC 244 and considering the aforesaid positions of law pointed out, learned advocate for the petitioner has requested the Court to grant the relief as prayed for in the petition. No other submissions have been made.

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To meet with the stand taken by learned advocate appearing for the petitioner, Dr.Venugopal Patel, learned Assistant Government Pleader appearing for the petitioner has placed written submissions on record on behalf of authority and has vehemently contended that petitioner has indulged in serious activities touching to the lower strata of the society and, therefore in this scheme, which is involving around 220 bogus card holders, strict action deserves to be taken and, therefore, the detention is the only measure by which the petitioner can be controlled. In a written submission, a contention is raised that there are 210 bogus card holders found during the course of inquiry by inspection team and under their names the essential commodities have been taken away and disposed of which has resulted not only huge loss to the State Exchequer but has got effect of depriving real needy person of grass-root level of people of society and, therefore, this is serious act on the part of the petitioner for which no leniency be shown. Mr.Patel, learned Assistant Government Pleader has submitted that being Incharge of said fair-price shop, petitioner was responsible to monitor affairs of said shop irrespective of his submitting that it is a charge given by force by Mamlatdar. Once the petitioner has accepted the charge may be under persuasion, the petitioner is under obligation to take care of such fair-price shop and the

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competent authority while arriving at subjective satisfaction has clearly narrated everything, which has been attributed against the petitioner, and once the authority has arrived at subjective satisfaction based on the material, there is hardly any justification for the petitioner to submit the present petition. The onus and the responsibility on Mamlatdar, Amreli as has been contended by Mr.Patel but once having given his signature, the petitioner cannot defy the procedure and provisions of law applicable. According to Mr.Patel, learned Assistant Government Pleader, a story has come up that charge has been given forcibly by Mamlatdar under persuasion. There are as many as 30 reasons shown by the authority to arrive at subjective satisfaction and, therefore, it is not open for the petitioner to take shelter of fundamental right and liberty concept.

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5.1 Mr.Patel, learned Assistant Government Pleader has contended that even RTI activist Nathabhai Sukhadia has represented that ration cards are also being run and continued of a person / resident of village Devediya of total 28 families whereby no bills for the month of March, 2018 have been issued which clearly indicates that there is a systematic design to operate the fair-price shop on the basis of bogus card holders. Learned Assistant Government Pleader then relied upon few observations made in a decision dated 16.08.2018 passed by the Court in Special Civil Application No.10057 of 2018 and para:6.1 is not at all squarely application as has been contended. The facts are altogether different and, therefore, no shelter of that can be taken by the petitioner. It has further been contended vehemently that

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petitioner, during the course of his such kind of activity of running fair-price shop, the episode and irregularities were not on a single day occurrence nor a single event. In fact, systematic operative activity of illegal and irregular in nature and that has found the authority to justify the action of detention and over the period of time, this activity of providing bogus card is a continuous activity and, therefore, decision rendered in case of Champion R. Sangma vs. State of Meghalaya reported in (2015) 16 SCC 253 would not squarely govern. On the contrary, petitioner’s activity has deprived the needy persons from the basic necessities of the life. The petitioner has made himself involved in misrepresentations of funds misappropriation through operationalised strategy which the authority has rightly understood and passed the order of detention. Learned Assistant Government Pleader has then relied upon some of the decisions which are narrated in paras:15, 16 and 17 of the written submissions which are; in the case of Smt.K.Aruna Kumari vs. Government of Andhra Pradesh reported in (1988) 1 SCC 296 , in the case of Union for Civil Liberties vs. Union of India reported in (2013) 2 SCC 663 and by referring to some of paragraphs the contention is raised that authority is thoroughly justified in nabbing the petitioner under detention to prevent him from going on and continued such kind of activities. This systematic commission of offence is therefore justified in the interest of justice and under this submission learned Assistant Government Pleader requested the Court to dismiss such meritless petition. No other submissions have been made.

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Having heard learned advocates appearing for the parties and

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having gone through the aforesaid submissions and the relevant record of present petition, few circumstances are not possible to be ignored by this Hon’ble Court while coming to an ultimate conclusion.

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6.1 First of all, the provisions of Prevention of Black Marketing and Maintenance of Supply of Essential Commodities ACT, 1980 has been brought with an avowed object in curbing effectively the mal-practice like black marketing, hoarding, profiteering and to arrest the unjustified rise in price of essential commodities by providing for prevention detention of persons likely to indulge in such practice and this is based upon enact statute and the recommendation of Law Commission in their Forty-seventh Report wherein it was found not adequate to deal effectively with such malpractice.

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6.2 In respect of this object, the Act has been enacted in which the authorities have been invested with the power to take stringent measure against persons who are indulging in such activities and Section 3 has invested power to make orders detaining certain persons, sub-section (1) of Section 3 postulates that if the Government or authorised officer who is empowered if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of the commodities essential to the community, it is necessary so to do, make an order directing that such person be detained. With a view to strike balance between the rights of the citizen / person against whom the authority inclines the Statute has put a check

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even on authority to follow certain procedure while carrying out such action. Section 3, as such, is a charging relevant section which is reproduced herein after.

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“3. Power to make orders detaining certain persons. —(1) The Central Government or a State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community it is necessary so to do, make an order directing that such person be detained.

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Explanation.—For the purposes of this sub-section, the expression “acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community” means—

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(a) committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955 (10 of 1955), or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in, any commodity essential to the community; or

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(b) dealing in any commodity—

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(i) which is an essential commodity as defined in the Essential Commodities Act, 1955 (10 of 1955), or

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(ii) with respect to which provisions have been made in any such other law as is referred to in clause (a), with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid.

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(2) Any of the following officers, namely:—

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(a) district magistrates;

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(b) Commissioners of Police, wherever they have been appointed, may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section.

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(3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government:

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Provided that where under section 8 the grounds of detention are communicated by the authority making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that for the words “twelve days”, the words “fifteen days” shall be substituted.

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(4) When any order is made or approved by the State Government under this section or when any order is made under this section by an officer of the State Government not below the rank of Secretary to that Government specially empowered under sub-section (1), the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.”

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6.3 Now, in the contest of this object and the provisions, if the record of the case on hand to be looked into, it appears that the present petitioner was entrusted the charge of shop, which was

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administered by Shri Jaishriban Bapu Grahak Sahkari Bhandar of village Rikadiya and Lapdiya. Undisputedly, this shop was run by and administered by Mansukhbhai Bhurabhai Rathod. On account of several irregularities, the license of Mandli was suspended in prior point of time and Mamlatdar, Amreli had entrusted the charge of said shop to the present petitioner in June, 2017 who is having similar shop at village Shedubhar. It is the case of the authority that this administration of the shop was taken up under administration by petitioner at the instance of Mamlatdar, Amreli, however, the petitioner has also neither taken care of nor looked out the affairs of the shop and has allowed and sheltered the irregularities. The inspection has been carried out at the instance of one RTI application given by activist Shri Nathalal Sukhadiya and on inspection on 05.04.2018, some 30 irregularities of a serious nature have been found by the authority. All such 30 irregularities and illegalities are clearly narrated by the authority in the order. It is surfacing from the record that it is highly surprising that the original shop of Jaydanbapu Grahak Sahkari Mandli, Rikadiya was run by Mansukhbhai Bhurabhai Rathod and on account of serious irregularities, the license of the shop which was administered by Mansukhbhai stood suspended and the charge was given. It is noticed that the very same Mansukhbhai Bhurabhai Rathod is allowed by the petitioner to carry out the affairs of shops and petitioner was merely putting the signature and allowing this very person, who was stopped from running said shop on account of irregularities which were serious enough and knowing full well the charge of the shop has been given to the petitioner. On account of irregularities the petitioner has allowed said Mansukhbhai to run

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the shop and administered the same. Not only that, even the petitioner has not taken care to visit the shop. On the contrary, he has chosen to go to the Mamlatdar office and putting thumb impression for continuing and getting monthly payment knowing full well aforesaid affairs, this petitioner instead of handing over charge back to the Mamlatdar rather has sheltered the irregularities which are serious enough.

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6.4 If the irregularities to be noticed reflecting on page:11 in the order, apart from maintaining stock register, putting the board on shop, bill book etc. even weight and measure scale have also not been found. One more serious act, which is reflecting, is that not only no record has been maintained, but as many as 210 bogus card holders are maintained of village Rikadiya and Lapdiya. It has been noticed during the course of inquiry that consequence of bills, which have been prepared and 210 bogus card holders have been utilised for distributing stock, has deprived several poor persons from benefit of distribution for whom this shop has been allowed to run. It has also been noticed that from the sale-register it has been found that on account of such modus oprendi within 3-4 days only entire distribution was shown to have been disbursed and the shops have remained closed. This has clearly found that irregularities are serious enough depriving real beneficiaries from the benefit of this shop. What and how much quantity of food-grains have been distributed unauthorisedly is enlisted in item no.21 of list of irregularities. All these things were going on, on account of which the steps have been taken by the authority and the charge was entrusted to said Mansukhbhai Bhurabhati Rathod who happened

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to be monitor / secretary of Shri Danpabu Grahak Sahkari Bhandar and this very petitioner has admitted clearly that petitioner is running his own shop at village Shedubhar. The petitioner has also admitted that his name was merely figuring on paper as administrator of shop but has allowed such administration to the erstwhile person Mansukhbhai who was found indulged in serious irregularities and, therefore, the authority found that in a systematic manner, operation was allowed by the petitioner to continue such irregularities irrespective of taking steps against said Mansukhbhai whose license was suspended. The activity appears to have been allowed rather instead of curbing and for that purpose even criminal complaint was lodged at Amreli Taluka Police Station being C.R.No.51 of 2018 on 16.06.2018. The authority, while passing an order, has at length appeared to have examined all the details supplied of documents to the petitioner to give an effective opportunity so much so that too allowed the petitioner to explain. Even the statements have been recorded of him on 05.04.2018 when inspection was undertaken.

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6.5 This statement, which has been given undisputedly by the petitioner, has clearly admitted the substantial irregularity, has clearly exhibited the guilt and has said that he has not undertaken any affairs of shop. On the contrary, it is also asserted that Mamlatdar when giving charge to the petitioner, he was allowing original administrator Mansukhbhai Bhurabhai to carry on affairs of shop and he was just putting his thumb impression for the purposes of getting monthly payment. Even it has also admitted that the stock with respect to supply as per papers was also paid by

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Mansukhbhai Rathod and distribution is also being undertaken by said Mansukhbhai. Meaning thereby knowing fully well said Mansukhbhai was suspended from carrying on activities with an open eyes, present petitioner was allowing said Mansukhbhai despite action against him to carry on activities of shop and was just giving thumb impression on paper that he is running the shop. This collusion apparently is admitted by the very petitioner on affidavit and has then projected his innocence. The petitioner himself is having such kind of shop at Village Shedubhar knowing all seriousness about it has allowed the distribution, supply of essential commodities and thereby continued with such malpractice and has also evaded his responsibility by making such statement. The petitioner himself is experienced person as he himself is running such shop at Village Shedubhar has allowed such irregularity to be sheltered, continued to operate by very same person who was shunted off and has rather put his specific signature for getting supply as well and, therefore as clearly appears to have admitted such abatement of commission of irregularities as specifically noticed by authority. The statement of this very petitioner is reflecting on page:279 of petition compilation. On the contrary, on the next page, it is reflecting a statement of Kishorbhai Dahyabhai and on page:291 has clearly admitted that he is working as employee in the said shop which is run by Mansukbhai Rathod and has also clearly stated that he does not know the petitioner who is said to have charge of the shop. The stock register, the relevant entries, bill-books and everything appear to have been taken into consideration by the authority while passing the order. Another statement of the petitioner also

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reflecting on record dated 23.02.2018 on page:323 has also indicated that he is putting thumb impression and getting monthly permit and permit is being kept at Mamlatdar office only and is completely unaware about such distribution and supply over the shop for which he was given charge with respect to record related to some 210 bogus cards, the authority has examined and the same found to have satisfied itself about such irregularities and upon detailed investigation by the Investigating team the material has been supplied before the detaining authority which has been taken into consideration at length. One of the contentions which appears to have been raised is that forcefully the Mamlatdar has given the charge of this shop to the petitioner but then there is specific order dated 08.06.2017 in which after suspension of license of Jaishree Banbapu Bhandar, the present petitioner was given the charge of distribution for which he has given the consent not only his resistance is not reflecting in order dated 08.06.2017 but even at the relevant point of time there is absolutely no indication which would remotely suggest that he has been forcefully given charge of such shop. On the contrary, throughout period, the petitioner has put his thumb impression to get the supply pursuant to monthly permit and allowing said Mansukhbhai to run administer and supply from very shop and so much so was allowing said Mansukhbhai to make payment of such stock. Therefore, this unawareness which is now being tried to be projected by the petitioner appears to be ill-founded and not at all reflecting from any chronology of the record except in the defense which is now tried to be projected. The overall consideration of the Detaining Authority as a sequence of passing an order of detention against the

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petitioner as well as soon as the huge and number of irregularities have been resulted and noticed by the authority. A substantial corroboration about irregularities has been very much reflecting and it has been read over to the petitioner and given all the documents related to it along with the order of detention.

¶119

6.6 Now, in view of the aforesaid situation which is prevailing, it appears that three fold contentions substantially submitted :- (i) that the representation has not been properly dealt with, (ii) the petitioner has not actually been part of irregularity and has merely put the signatures allowing said Mansukhbhai to carry on and said Mansukhbhai is real culprit and (iii) there is an order of suspension of license and, therefore, authority has not applied its mind that once there is an order of suspension, the very object of preventing the petitioner is subserved and achieved and, therefore, this stringent measure of detention could not have been resorted to and lastly a non-application of mind. Though written submissions have been tendered but aforesaid are the projections made at the time of hearing of the petition.

¶120

6.7 In light of aforesaid circumstance and in view of the fact that if one contentions appeals to the Court and same is clinching the issue, this Court need not to go to the other issues of general nature. What has been reflected from the record here is that pursuant to the inspection which has been carried out the authority on 24.05.2018 has specifically passed an order of suspension of license with respect to the petitioner. It is undisputedly clear from record that petitioner’s license for a fair-price shop of Shedubhar

¶121

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village has also appeared to have been suspended with immediate effect by District Supply Officer, Amreli. The effect of suspension is that by virtue of that petitioner would not be in position to deal with. As a result of this situation, the contention which has been raised by learned advocate for the petitioner deserves to be dealt with. The authority has not applied its mind with respect to effect of suspension of license of the petitioner as the said order has also got effect of preventing the petitioner from carrying out activity. The Court in past also was confronted with the similar kind of contention wherein in case of Dalpat Bhikha Patel vs. District Magistrate, Surat, the Division Bench, while dealing with the very same issue, and under the provisions of prevention of Black Marketing Act and has decided it which judgment is reported in 1983 (2) GLR 849 – 1982 (0) GLHEL – HC – 202765. The Division Bench of this Court in the said decision has held that the order of suspension serves the same purpose and effect as an order of detention. The detention vitiates because the subjective satisfaction has not been legitimately reached and possibility of launching the criminal prosecution not made out by the detaining authority and this very contention has been dealt with and some of the relevant observations since the material to the controversy in question deserves to be reproduced herein after. Paras: 8, 9, 11, 12, 13 and 14.

¶124

“8. The detention order has been challenged on several grounds in the memo of petition. At the hearing of the petition however the challenge was confined to the following grounds:

¶125

(1) There is non-application of mind on the part of

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the detaining authority on a material aspect which has a vital bearing on the question of the need to detain the petitioner, the petitioner has been placed under suspension since 19/07/1982 the material fact that the petitioner has thus been placed out of the harms way by having been deprived of an opportunity to misuse his office and to commit irregularities in respect of the quota of cement received from time to time for the irrigation Project at Vansda was not present to the mind of the detaining authority when the impugned order was passed on 10/09/1982 the subjective satisfaction of the detaining authority is therefore not arrived at in accordance with law and the impugned order based on such subjective satisfaction is illegal and invalid.

¶129

(2) There was failure on the part of the detaining authority to consider the possibility of launching a criminal prosecution in regard to the alleged breaches of law and the consequential commission of the alleged offences by the petitioner; since the mind of detaining authority was not applied to the said vital and material aspect which assumes considerable significance on the facts and in the circumstances of the case the subjective satisfaction is not arrived at in accordance with law and the impugned order based on such subjective satisfaction is illegal and invalid.

¶130

(3) The grounds furnished to the petitioner show in unmistakable terms that the satisfaction of the detaining authority with regard to the need need of detaining the petitioner was reached inter alia on the basis of the alleged activities carried on by the petitioner since long time past with a view to prejudicially affecting the maintenance of supplies of commodities essential to the community; such satisfaction is vitiated because:

¶131

(a) the relevant portion of the grounds ex facie discloses non-application of mind on the part of the detaining authority on this material and vital aspect;

¶132

(b) there was no material whatever before the

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detaining authority so as to enable it to reach such a conclusion;

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¶137

(d) in the grounds furnished to the petitioner no particulars are furnished with regard to such past activities of the petitioner and therefore the petitioner had no reasonable opportunity to meet such an allegation.

¶138

(4) The detention order is based on materials not communicated to the petitioner with the result that there was denial of an opportunity to make an effective representation against the order of detention.

¶139

In our opinion the petitioner is entitled to succeed on the basis of each of the first two grounds of challenge. It is not necessary therefore to pronounce upon the validity or otherwise of the other two grounds. In the course of this judgment we shall confine our attention only to the first two grounds.

¶140

Against the aforesaid background let us examine the validity of the first ground of challenge. The fact that the petitioner was placed under suspension on and with effect from 19/07/1982 i.e. nearly one month and three weeks before the order of detention was …. The order of suspension passed against the petitioner therefore served same purpose and had the same effect which was sought to be attained by his detention. The petitioner was thereby put out of the harms way and prevented from indulging in future in his objectionable activities detrimental to the maintenance of supply of an essential commodity.

¶141

Now this vital and material fact is not shown to have been taken into consideration by the detaining authority before arriving at the subjective satisfaction. …...we cannot help observing that in absence of the affidavit of the

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detaining authority himself it is difficult to appreciate how a challenge of this nature could have been met at all. ….. The source of such information and belief is not stated. It would not be unreasonable to assume however that such source could only be the record which was before him when he made the affidavit.

¶145

13. The material ..

¶146

When this portion of the affidavit was read to us we asked the Special Public Prosecutor to produce the record in order to ascertain whether the record showed that the mind of the detaining authority was applied to the impact of the order of suspension on the question of the need of detention of the petitioner. When we perused the record we found that this aspect was nowhere shown to have been present to the mind of the detaining authority. In fact the record does not contain even a reference to the factum of the petitioners suspension. The learned Special Public Prosecutor when confronted with this position fairly stated that the record does not disclose that this aspect was borne in mind or taken into consideration by the detaining authority. …..

¶147

In view of the second affidavit it is clearly manifest that the detaining authority’s mind was not at all applied to the vital aspect relating to the impact of the suspension of the petitioner on the need of the exercise of the power of detention on the facts and in the circumstances of the case. This is a very pertinent aspect and non-application of mind to such an aspect leads to the legitimate inference that the power of detention is vitiated because the subjective satisfaction which the law enjoins the detaining authority to arrive at has not been legitimately reached. On this ground alone the detention order must fail.

¶148

This however is not all. The detenu is entitled to succeed even on the ground that the possibility of launching a criminal prosecution is not shown to have been considered by the detaining authority. The position in regard to this aspect is no better than that with respect to the aspect of suspension. In paragraph 9 of the affidavit the In-charge

¶149

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Collector and District Magistrate has stated as follows:

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“... it is submitted ….”

¶153

When we looked at the original record however we found that the detaining authority’s mind was not applied at all to the possibility of launching a criminal prosecution against the petitioner and such prosecution if any being an effective deterrent against his continuing the objectionable activities alleged against him.”

¶154

6.8 The Court has further analysed the past decision and has eloquently observed that detaining authority must keep in mind the circumstances of possibility of prosecution as well as the effect of suspension and paras:15 and 16 of the same are also kept in mind by the Court.

¶155

“15.The question then is as to what is the effect of omission to take into account this material aspect. In Special Criminal Application No.790 of 1982 and another matter which were decided on 3/08/1982 a Division Bench of this Court of which one of us (myself) was a member had an occasion to consider the legal position in this behalf as emerging from the decisions of the Supreme Court in BHUT NATH V. STATE OF WEST BENGAL, A.I.R. 1974 SC 806 KANCHANLAL MANEKLAL CHOKSHI V. STATE OF GUJARAT, AIR 1979 SC 1945 and SMT. HEMLATA KANTILAL V. STATE OF MAHARASHTRA, AIR 1982 SC 8. Having considered the ratio of those decisions the Division Bench speaking through me, summarised the law on the subject in the following words:

¶156

“... The detention power cannot be used to subvert supplant or to substitute the punitive law merely because it is irksome to undertake the inconvenience of proving guilt in Court of law. In other words the ordinary criminal process is not to be circumvented or short-circuited by ready resort to preventive detention. However, the fact that a criminal prosecution can possibly be launched is not

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an absolute bar to the making of an order of preventive detention. If the detaining authority is satisfied that the offender has a tendency to go on violating the laws then there will be no bar against his detention in order to disable him to repeat such offences Besides merely because the possibility of criminal prosecution is not present to the mind of the detaining authority the order of detention would not be rendered necessarily invalid. However, on the facts and in the circumstances of a case the failure of the detaining authority to consider the possibility of launching a criminal prosecution may lead to the conclusion that there was non application of mind on the part of the detaining authority to the vital question whether it was necessary to make an order of prevention detention. Where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present before the mind the question whether it was necessary to make such an order when awn ordinary criminal prosecution could well serve the purpose the detaining authority must satisfy the Court that aspect too was borne in mind before the detention order was made. In such a case what is required is that detaining authority must satisfy the Court that it had in mind the question whether the prosecution of the offender was possible and sufficient in the circumstances of the case. In some cases for example it may not be possible to bring the culprit to book even if he is prosecuted such as when he is a professional bully or a murderer or a dacoit as witnesses would not come forward to depose against him out of fear; or when the culprit is a member of an international smuggling machinery or a member of a gang of conspirators who have undertaken preplanned activities on a large scale to divert from the regular channel supplies of essential commodities and it may not be possible to collect all necessary evidence without unreasonable delay and expenditure to prove the guilty beyond reasonable doubt. If the detaining authority fails to satisfy the Court that the

¶160

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detaining authority applied its mind to all the relevant aspects bearing on the question of the possibility of launching a prosecution the Court would be justified in drawing the inference that there was nonapplication of mind by the detaining authority to the vital question whether it was necessary to preventively detain the detenu.”

¶163

Against the aforesaid background there is no manner of doubt that the possibility of criminal prosecution being not present to the mind of the detaining authority in the instant case renders the detention order invalid. As earlier pointed out the petitioner having been suspended is placed out of the harms way. He would no longer be in a position to carry on his objectionable activities. …..... The petitioner is not a professional bully a murderer a dacoit or the like against whom prosecution may not succeed for want of evidence because witnesses would not be willing to come forward. Nor is this a case where it would not be possible to collect necessary evidence without reasonable delay and expenditure to prove the guilt beyond reasonable doubt.”

¶164

6.9 Yet another decision of coordinate bench of this Court in the case of Upendrabhai Jasubhai Joshi vs. District Magistrate reported in 1999 (1) GLH 145 in which the Court was confronted with similar kind of situation and in that case also it has been observed in clear and in uncertain terms that if the detaining authority did not indicate in the ground of detention or in the order of detention that suspension or cancellation of license could not effective remedy and the preventive detention was the only effective remedy. The order of detention would suffer from vice of non-application of mind. The relevant observations of the said decision contained in para:10 is reproduced herein after.

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“10. Thus from these two Division Bench pronouncements it is manifestly clear that if the Detaining Authority did not indicate in the ground of detention or in the order of detention that suspension or cancellation of licence could be no effective remedy and the preventive detention was the only effective remedy the order of detention would suffer from vice of non application of mind. If from the order of detention or grounds of detention it could be found that the Detaining Authority applied its mind to the possibility that cancellation or suspension of licence will not be effective remedy then ofcourse this Court cannot scrutinise whether on material on record the subjective satisfaction recorded by the Detaining Authority is correct or not. Consequently, on this ground also the order of detention has to be set aside.”

¶168

6.10 Yet another decision in the case of Musabhai Sodha vs. State reported in 1999 (1) GLH 432 wherein also this issue of suspension or cancellation of license of the detenue was not dealt with and considered. The Court has again in clear terms held that “that is a ground on which the petitioner can assail the action of the authority.”

¶169

6.11 Now coming to this case on hand, the record indicates on page:439 that there is a clear order of suspension for a period of 90 days of license of the petitioner passed on 24.05.2018 and if the same is to be examined from the order of detention, which has been passed, it appears that there is no reference at all apart from concluding or applying mind on this issue about the effect of suspension and, therefore, the authority has clearly in terms not at all examined. This aspect is considered to be relevant by catena of decisions and, therefore, order is treated as suffers from vice of non-application of mind. Bare perusal of the reasons ultimately

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after narration of irregularities reflecting on page:29 is not referring to any such issue and rather it is reflecting that criminal complaint has also been filed and, therefore, authorities have not clearly come out with a satisfaction that filing of a complaint against the petitioner and suspension of license of the petitioner are not sufficient enough to bring the petitioner. Hence, the order of detention deserves to be passed. Now this satisfaction is completely missing. As a result of this, Court is left with no other alternative but to quash and set aside the action of the respondent authority.

¶173

6.12 The Court is mindful of the object of the Act for which it has been enacted. The Court is mindful of the irregularities which have been reflecting in the order but then in such a situation to deal with serious lapse, the authority is not permitted to exercise the jurisdiction in such casual way especially when stringent powers of detention to be exercised. Hence, keeping in mind the aforesaid propositions of law laid down as narrated hereby the Court is of the clear opinion that orders suffers from the vice of non-application of mind.

¶174

6.13 Here the Court would like to mention that authority appears to have examined the relevant documents but has failed to arrive at a subjective satisfaction cogent enough to suspend the order of detention. Of course, this point if not dealt with by the detaining authority in connection with the said Mansukhbhai who administered the shop in question even after suspension of his license possibly the Court would have ignored since even after suspension said Mansukhbhai has undertaken administration of the

¶175

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shop and the petitioner allowed the same. So apprehension of repeating the irregularity could have been justified in case of Mansukhbhai but so far present petitioner is concerned, the authority has not even applied its mind to aforesaid two issues which touching to the root of exercising powers of detention. The Court is not impressed upon other submissions which have been made about the representation not been dealt with by the authority and about the fact that petitioner is innocent person has merely allowed Mansukhbhai to undertake and administer the shop, the Court would have dealt with and decided otherwise but for the aforesaid circumstance that effect of suspension of license of the petitioner and possibility of launching prosecution would have been dealt with. As a result of this, without much entering into other issues, the Court is of the view that this is a sufficient circumstance on which the order of detention deserves to be quashed and set aside.

¶178

6.14 The Court has an advantage of one another decision delivered by Apex Court in case of Union of India vs. Patel Menicam and others reported in 2004 (1) GLH 57 wherein the principles setout by catena of decisions while dealing with an order of detention, the observations which have been made since relevant observations contained in para:14 is relevant is reproduced herein after.

¶179

“14. In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to

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prevent apprehended, objectionable activities. (See Rex v. Nallidev; Mr. Kubic Dariusz v. Union of India) But at the same time, a person’s greatest of human freedoms, i.e., personal liberty is deprived, and, therefore, the laws of prevention detention are strictly construed, and a meticulous compliance with the procedural safeguard, however, technical is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose all their meanings, are the true justifications for the laws of preventive detention. This jurisdiction has been described as a “jurisdiction of suspicion”, and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of the individual liberty. ( See Ayya alias Ayub v. State of U.P. and Another). To lose our country by a scrupulous adherence to the written law, said Thomas Jafferson, would be to lose the law, absurdly sacrificing the end to the means. No law is an end itself and the curtailment of liberty for reasons of State’s security and national economic discipline as a necessary evil has to be administered under strict constitutional restrictions. No carte blanche is given to any organ of the State to be the sole arbiter in such matters.”

¶183

In view of aforesaid peculiar sets of circumstance especially when the Court is dealing with not the case of Mansukhbhai who administered the shop in question in respect of present petitioner is of the view that the order of detention suffers from the wise of nonapplication of mind. As a result of this, petition succeeds. The impugned order of detention is quashed and set aside hereby.

¶184

In view of the aforesaid peculiar set of circumstance with respect to the petitioner, the Court is of the view that the relevant circumstances pertaining to the measure of detention against the petitioner have not been dealt with in its proper perspective which

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vitiate the exercise of power and since it suffers from the vice of non-application of mind, the Court is left with no other option but to allow the petition. Accordingly, the impugned order of detention passed vide order No.DTN / ECA / 2 / 2018 dated 18.06.2018 by the District Magistrate, is hereby quashed and set aside. Rule is made absolute with no order as to costs.

¶188

(A.J. SHASTRI, J)

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MISHRA AMIT V.

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Trikam Kalabhai Sheladiya v. State of Gujarat

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Trikam Kalabhai Sheladiya v. State of Gujarat

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