GUJARAT HIGH COURT (DB)
A.P. Ravani & J.U. Mehta, JJ.
Baldevbhai Motibhai Patel - Petitioner
versus
State & ors. - Respondents
Special Crl. Application No. 168 of 1989
Decided on 14-6-1989
Counsels for the parties:
Mr. H.L. Patel, Advocate - For the Petitioner.
Mr. S.T. Mehta & H.M. Bhagat, Advocates - For the Respondents.

IMPORTANT POINT
In preventive detention cases, power to temporarily release the detenu may be exercised for specified period, i.e. not beyond fifteen days in all when the total period of detention is of six months.

Headnote:(i) Preventive Detention - Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 - Sections 3(1) and 15 - Detention under Section 3(1) - Subsequent exercise of power of temporary release of detenu - Cannot justify the inference in all cases that the initial satisfaction arrived at by detaining authority was bad.

       Held: In all cases, simply because subsequent actions of the detaining authority (or that of the appropriate Government in case where the detaining authority is other than the appropriate Government) cannot justify the inference that the initial satisfaction arrived at by the detaining authority that it was necessary to preventively detain the detenu was bad or that the power of preventive detention has been exercised with ulterior motives. It may be that the subsequent exercise of power of temporary release may be unlawful or illegal or may be for extraneous purposes. From such subsequent actions it would be hazardous to infer in all cases that the initial exercise of power itself was bad. (Para 4)

       (ii) Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 - Sections 13 and 15 - Power to temporarily release the detenu - The phrase 'specified period' under Section 15 - Interpretation of - Held: specified period in all, not to extend beyond seven or ten days or at the most fifteen days - Basic rule of interpretation of statutes that the different provisions of the statutes should be interpreted harmoniously is applicable.

       Held: Exercise of powers under Section 15 of the Act in such fashion, i.e. frequent orders of temporary release and the specified period to run for months together or with short interval of few days in between would be in conflict with exercise of powers under Section 3 of the Act. This is so because while exercising powers under Section 3 of the Act the detaining authority has to arrive at the subjective satisfaction that a person is required to be detained in custody for a specified period which may range upto six months. The detaining authority has to satisfy itself that it is necessary to detain such person preventively. The term "necessary" implies that it is urgently necessary to do so. If the powers under Section 15 of the Act for temporary release are considered to mean that a person detained pursuant to the orders passed under Section 3 of the Act can be temporarily released for any number of days or months would mean that the order passed under Section 3 of the Act can be nullified by exercising powers under Section 15 of the Act. Therefore, one of the basic rules of interpretation of statutes that the different provisions of the statutes should be interpreted harmoniously suggests that this specified period has got to be short, i.e. it can run into number of days only and not into number of weeks, apart from the question of running into number of months. This reasonable limit has got to be necessarily implied in the powers conferred by Section 15 of the Act. If the "specified period" is to exceed the limit of seven or ten days or at the most fifteen days in the entire period of detention, it would be in conflict with the powers conferred under Section 3 of the Act. The interpretation which results into conflict between the two provisions of the same statute has got to be avoided. Therefore, unless reasonable limitations are read in the provisions of Section 15 of the Act and unless it is interpreted that "specified period" in all does not extend beyond seven or ten days or at the most fifteen days, both the provisions cannot stand together. (Para 9)

       (iii) Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 - Section 15 - Power to temporarily release the detenu – By necessary implication this power is not meant for frequent exercise of the same - Sickness of the detenu or of some of his family members should ordinarily not be treated as sufficient ground to elevate the same to the level of grave and emergent situation to permit temporary release of the detenu - When the powers of temporary release are exercised by the State Government for the second time and then awards the Central Government should be also kept appraised of this fact. (Paras 12 & 14)

       (iv) Constitution of India Act, 22(5) - Prevention of Black - marketing and Maintenance of Supplies of Essential Commodities Act, 1980 - Section 3(1) Detention under – Challenged - Only one solitary incident of irregular sale of kerosene - The detenu has been temporarily released immediately after his detention within a period of ten days - The authority has not imposed conditions on the detenu to the effect that he shall not attend to his business - Facts of the case justify criminal prosecution - Order of detention is hereby quashed and set aside.

       Held: One single sale of 3500 litres of kerosene to one individual customer is the sole basis of order of detention. In the submission of the learned Counsel for the petitioner, for such irregular sale criminal prosecution would have been sufficient. In his submission; after launching criminal prosecution, the authorities could have requested the Court to impose stringent conditions upon the petitioner-detenu even if the Court was of the opinion that the petitioner-detenu could be released on bail. In his submission, only on the basis of one solitary incident of irregular sale of kerosene the prognosis could not have been made that the petitioner will indulge in such activities in future also. We see much force in this submission. The contention is reinforced by the fact that even when the petitioner has been temporarily released immediately after his detention within a period of ten days, the detaining authority itself has not thought it proper to impose conditions on the detenu to the effect that he shall not attend to his business. In the fact of the case it appears that the respondent authorities have overlooked the facts that preventive detention is not to be used as a substitute to punitive measures. The facts of the case eminently justified criminal prosecution. On the basis of this solitary incident prognosis could not have been made that the petitioner-detenu would indulge into same or similar type of activities in future and that he was required to be preventively detained with a view to restrain him from acting in a manner prejudicial to the maintenance of supplies of commodities essential to the community. Thus we are of the opinion that the satisfaction arrived at by the detaining authority on the basis of one solitary incident of irregular sale of kerosene was not sufficient to warrant the prognosis that it was necessary to detain the petitioner-detenu preventively. Thus the subjective satisfaction arrived at by the detaining authority in this behalf stands vitiated. (para 17)

       Result: Petition allowed.