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1998 Supreme(Guj) 668
Gujarat High Court
Judgename :D.C.Srivastava
Harooabhai Musabhai Sodha - Appellant
Versus
STATE - Respondent
S.C.A. 7744 of 1998
Decided On : 12/04/1998
Headnote:(a) Prevention of the Blackmarketing & Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 7 of 1980) - Sec. 3(2) - Detention - Maximum period of six months provided - Merely because short period is left detention can not be quashed.
The first contention for the petitioner has been that the petitioner is under detention since 1.7.1998, and the maximum period of detention is only six months which is going to complete in this very month and as such lenient view may be taken and the order of detention may be quashed. This cannot be a ground for quashing the detention order. Even if one or two days are left and the detention order is found to be legal and justified, it cannot be quashed.
[Para 4]
(b) Prevention of the Blackmarketing & Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 7 of 1980) - Sec. 3(2) - Detention - Grounds of - Each antisocial activity disclosed in the grounds of detention constitutes separate ground of detention - One of the grounds found ineffective would not lead to infer the other grounds equally ineffective - In the case Court found that detaining authority properly reached to the subjective satisfaction which requires no interference.
It is not the case where the detaining authority was influenced solely with the fact that the petitioner was charging Rs. 0.17 ps. per liter excess from the ration card-holders. Each antisocial activity disclosed in the grounds of detention constitute separate ground for detention and if one ground is found to be ineffective it cannot be said that the other grounds were equally ineffective. This charging of Rs. 7/- per liter in black market is surely a black marketing activity which could not be ignored by the detaining authority. Other activities alleged against the petitioner were also considered to reach subjective satisfaction that he was engaged in continuous antisocial activities of black marketing of kerosene and essential food articles kept in his fair price shop. Thus, the subjective satisfaction of the detaining authority on this point requires no interference.
[Para 5]
(c) Prevention of the Blackmarketing & Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 7 of 1980) - Sec. 3(2) - Constitution of India, 1950 - Art. 22(5) - Detention - Supply of all relevant material to the detenue - Constitutional mandate - In the instant case detaining authority placed reliance upon a note book & register seized from the custody of petitioner at the time of surprise inspection - Detaining authority did not supply the copy thereof to petitioner to enable him to furnish effective & complete reply in his defence - Violation of constitutional guarantee - Detention order held illegal.
The learned counsel for the petitioner has rightly contended that in the grounds of detention the detaining authority has placed specific reliance upon the registers maintained in the handwriting of the petitioner, and since the petitioner is in jail he is unaware of the contents of those registers and it was obligatory for the detaining authority to supply copies of those registers upon which specific reliance was placed in the grounds of detention. Reference to Para 14 of the grounds of detention can be made which shows that personal account notebook of the petitioner was seized in which details of sale of each commodity were found mentioned for the period from 6.5.1998 to 16.6.1998 and further there was a mention in the said notebook at some places in the handwriting of the petitioner the names of 7 persons to whom date-wise supply and sale of foodgrains and kerosene was made. Since the detaining authority placed reliance upon this document and it was seized from the custody of the petitioner at the time of surprise inspection, the detaining authority should have supplied its copy to enable the petitioner to furnish effective and complete reply in his defence. Since this was not done it has violated the constitutional guarantee of the petitioner contained in Art. 22 (5) of the Constitution of India and it has rendered the impugned detention order illegal.
[Para 6]
(d) Prevention of the Blackmarketing & Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 7 of 1980) - Sec. 3(2) - Detention - Consideration of alternative efficacious remedy - This must permeate the process of subjective satisfaction of the detaining authority before the orders of detention are passed - In absence thereof exercise would not be comprehensive enough and would be liable to fail on account of non-application of mind.
On identical facts, the Division Bench of this Court in Parshottambhai Navalram Khemani vs. State of Gujarat, reported in 26 (2) GLR 620 held that if the alternative remedy was not considered by the detaining authority, the order of detention has to be held as invalid. It was observed by the Division Bench of this Court in this case that it is obvious that whether such drastic remedies which can serve the purpose of preventing the petitioner from indulging in alleged nefarious activities can be resorted to will be a vital aspect of the matter which should enter the subjective satisfaction exercised by the detaining authority before the detention order is passed. Alternative remedies, according to the Division Bench, may be by way of prosecution under the Essential Commodities Act, by way of departmental action against the concerned licence- holder by way of cancellation of licence, suspension of licence, confiscation of stock etc. This vital consideration must permeate the process of subjective satisfaction of the detaining authority before the orders of detention are passed. If these vital considerations have not entered in exercise, the exercise would not be comprehensive enough and would be liable to fail on account of non-application of mind to all the material vital aspects having direct impact on the subjective satisfaction to detain the concerned petitioner. It is further clear from this pronouncement that if this exercise was undertaken by the detaining authority its subjective satisfaction cannot be questioned by saying that the consideration of alternative remedy was not satisfactory or improper.
[Para 7]
The stock from the shop of the petitioner has not been confiscated as was informed by the learned counsel for the petitioner. Likewise, no departmental action has been taken for cancellation or suspension of licence. Simply because alternative remedy of prosecution under Sec. 3/7 of the Essential Commodities Act was in the mind of the detaining authority it cannot be accepted that other efficacious alternative remedies were also in the mind of the detaining authority and it for one reason or the other found that such remedies could not be effective. Since in the grounds of detention alternative remedy of suspension and/or cancellation of licence was not taken into consideration, the impugned order becomes illegal and invalid.
[Para 8]
( 1 ) THE prayer in this writ petition under Art. 226 of the Constitution of india is to quash the detention order, dated 1. 7. 1998 passed by the District Magistrate against the petitioner under Sec. 3 (2) of the Prevention of Black Marketing and maintenance of Supplies of Essential Commodities Act, 1980 and for writ of habeas corpus for immediate release of the petitioner from illegal detention.
( 2 ) ). The brief facts giving rise to this petition are that the petitioner is a licence-holder of a fair price shop where he distributes food-grains like wheat, rice etc. , also Sugar and edible oil like Palmolin oil and lastly kerosene under the terms of licence. On 23rd June, 1998 a surprise inspection of the petitioners shop was made by the inspecting officers of the Supplies Department and large number of irregularities were found which indicated that the petitioner was actively and repeatedly engaged in antisocial activities of black marketing of the essential commodities by selling them at higher prices than fixed by the government. From the detailed grounds of detention those irregularities can be briefly pointed out as under :
( 3 ) ). The first allegation is that the petitioner was selling blue kerosene to authorised ration card-holders at Rs. 3. 50 ps. per liter as against fixed price of Rs. 3. 33 ps. per liter, and in this way he has earned undue profit by indulging in black marketing, and the amount so earned comes out to Rs. 4,000/- and odd. Other irregularities are that excess stock of Kerosene which was not distributed to ration card-holders was sold in open market at black market price. The details of huge profits earned by the petitioner are given at page 19 of the English translation of the grounds of detention. It was also detected that the petitioner was keeping bogus ration cards and irregular stock register was maintained in which regular distribution of essential commodities was shown whereas it was not actually distributed to ration card-holders. These specific details have been given in the grounds of detention. It was also found that the ration card-holders who were not living in the concerned villages did not collect their ration, still its distribution was shown in the relevant register maintained by the petitioner/the further allegation was that the bogus ration cards were newly issued by the petitioner. Considering that these activities, amounted to anti-social activities in the nature of black marketing that the impugned order of detention was passed on 1. 7. 1998. The grounds along with relevant copies of documents were furnished to the petitioner. This order has been challenged in the instant writ petition by the petitioner.
( 4 ) ). The first contention of the Ld. counsel for the petitioner has been that the petitioner is under detention since 1. 7. 1998, and the maximum period of detention is only six months which is going to complete in this very month and as such lenient view may be taken and the order of detention may be quashed. This cannot be a ground for quashing the detention order. Even if one or two days are left and the detention order is found to be legal and justified, it cannot be quashed.
( 5 ) ). The next contention has been that the grounds of detention are based on flimsy grounds. To illustrate this argument, it was pointed out that there is an allegation that as against fixed price of blue kerosene at the rate of Rs. 3. 33 ps. per liter the petitioner has been charging Rs. 3. 50 ps. per liter and in this way he was charging 17 paise per liter in excess of fixed price and has earned illegal profits by indulging in such an activity. The contention has been that since small coins are not available the petitioner was forced to charge Rs. 3. 50 ps. per liter as against the fixed price ot Rs. 3. 33 ps. per liter. The contention seems to be acceptable but on this ground the detention order cannot be quashed. There is still another patent allegation that irregular sto
