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1989 Supreme(Guj) 76
Gujarat High Court
Judgename :A.P.RAVANI, J.U.MEHTA
Baldevbhai Motibhai Patel - Appellant
Versus
State of Gujarat - Respondent
S.CRI.A. 168 of 1989
Decided On : 06/14/1989
Headnote:
Essential Commodities Act, 1955 – Section 7 – Gujarat Essential Articles (Licence, Control and Stock Declaration) Order, 1981 – Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 – Section 3 (1), 15, 14, 13 – Illegal – Order of detention – Revocation of detention – Void – Petitioner is a holder of licence issued under provisions of Essential Commodities Act, 1955 and under relevant provisions of Gujarat Essential Articles Order, 1981 – Petitioner is dealing in essential commodity, namely, kerosene – It was alleged that petitioner had issued fake bill in name of one Gitaben Upadhyay of village showing that 3500 litres of kerosene was sold to her; that signature of customer on bill issued was also fake – Stock of kerosene was illegally disposed of elsewhere and correct accounts of receipt and distribution of kerosene were not maintained as required under relevant provisions of Control Order – Hence detaining authority, i. e. State Government of Gujarat passed order dated directing to preventively detain petitioner – Order has been passed under the provisions of S. 3 (1) of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 – Order has been executed – Petitioner has challenged legality and validity of order of filing this petition – Held, facts of case eminently justified criminal prosecution – On basis of this solitary incident prognosis could not have been made that 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 maintenance of supplies of commodities essential to community – Thus we are of opinion that satisfaction arrived at by detaining authority on basis of one solitary incident of irregular sale of kerosene was not sufficient to warrant prognosis that it was necessary to detain petitioner-detenu preventively – Thus subjective satisfaction arrived at by detaining authority in this behalf stands vitiated – Petition Allowed
( 2 ) AS provided under the Act, the maximum period of detention for which a person can be preventively detained in custody is six months. Ordinarily the period of detention would have come to an end by now. Therefore, we called upon the learned counsel appearing for the respondent-authorities to show as to whether the petitioner was finally released on expiry of the period of detention. After referring to the relevant files the learned counsel for the respondents has stated that the petitioner was frequently released temporarily (for a total period of 104 days) under the provisions of S. 15 of the Act. The details of the application and the period for which he has been released from time to time are as follows :
Sr. No.
Date of application.
Date of release.
Period for which temporary release has been ordered.
1.
21-12-88
23-12-88
10 days
2.
28-12-88
1-1-89
15 days (temp. release extended)
3.
10-1-89
10-1-89
10 days
4.
23-1-89
25-1-89
7 days
5.
8-2-89
10-2-89
10 days
6. 24-2-89
7-3-89
7 days
7.
10-4-89
10-4-89
10 days
8.
21-5-89
21-5-89
15 days
9.
8-6-89
8-6-89
20 days
Total 104 days
( 3 ) IN view of the aforesaid factual position learned counsel for the petitioner submitted that the State Government of Gujarat has exercised the powers of detention. This very authority has, within a period of fifteen days from the date of detention (i. e. on December 21, 1988 as indicated hereinabove) temporarily released the petitioner for a period of 10 days. This period of temporary release has been extended from time to time up to January 31, 1989. Thereafter the petitioner has been temporarily released frequently and the last order of temporary release is dated June 8, 1989 which is for the period ending on June 27, 1989. In view of this factual back-ground it is submitted that the initial satisfaction arrived at by the detaining authority as regards the inadequacy of criminal prosecution and the apprehension that the petitioner, if released on bail by the criminal
