DEVJIBHAI KALABHAI PATEL v. STATE — 1986 DIGILAW 195 (GUJ)

S. B. MAJMUDAR, J. ( 1 ) THE petitioner who is a detenu under the provisions of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act 1980 (the Act for short) has challenged the order of his preventive detention passed by the Deputy Secretary Government of Gujarat Food and Civil Supplies Department by order and in the name of Governor of Gujarat at Annexure B dated 24 It recites that the Government of Gujarat is satisfied with respect to the petitioner that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities i. e petroleum product (kerosene) essential to the community it is necessary to preventively detain him and therefore the impugned order is passed. The petitioner was also supplied with grounds of detention of even date. The grounds of detention are in Gujarati and are at Annexure D to the petition. . . . . . . . . . . . . . ( 2 ) MR. D. D. Vyas learned advocate for the petitioner amongst Others contended that the subjective satisfaction arrived at by the detaining authority against the petitioner as reflected in the order of detention becomes equivocal and confusing when the detention order is read in the light of the grounds of detention supporting the order and as supplied to the petitioner and therefore the subjective satisfaction underlying the detention order can be treated to be unreal confusing and equivocal and on that ground alone the detention order is liable to be quashed. . . . . . . . . . . . . ( 3 ) SO far as the aforesaid contention canvassed by Mr. Vyas is concerned a mere look at the detention order shows that the detaining authority was satisfied about the need to preventively detain the petitioner with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of supplies of commodities i. e. petroleum product (kerosene) essential to the community. The order of detention therefore clearly indicated that the petitioner was required to be detained with a view to keeping him out of harms way as far as supply of essential commodity viz. kerosene was concerned. Of course the detention order does show that kerosene is a petroleum product. The order of detention therefore clearly indicated that the petitioner was required to be detained with a view to keeping him out of harms way as far as supply of essential commodity viz. kerosene was concerned. Of course the detention order does show that kerosene is a petroleum product. However the satisfaction underlying the detention order as conveyed to the petitioner by virtue of the detention order was a clear satisfaction regard the need to preventively detain the petitioner with a view to seeing that he does not disturb maintenance of supplies of kerosene to the community. However when we turn to the grounds of detention at Annexure `d we find that the subjective satisfaction permeating the detention order as mentioned in the grounds of detention becomes overlapping confusing and equivocal satisfaction. We will presently show how the said conclusion is reached from a close scrutiny of the grounds of detention at Annexure D. The second para of the grounds when translated into English reads to the effect that with a view to enabling the petitioner to make an effective representation against the detention order to the State Government he is being informed of the grounds. The grounds of detention were as indicated in the later para. It has been further stated that on each of the grounds mentioned therein a separate order of detention can be passed against the detenu and on that basis a composite single order was passed. Then follows ground No. 2 which mentions that kerosene is an essential commodity for the society and with a view to preventing the petitioner from disturbing maintenance of the stock and from disturbing distribution thereof the detention order was passed against the detenu. This para therefore makes it clear that the sole basis of the order of detention was the subjective satisfaction of the detaining authority about the need to preventively detain the petitioner with a view to seeing that stock of essential commodity viz. kerosene remained well maintained and distributed in the society. Thereafter follows ground No. 3 which recited that the petitioner was carrying on partnership business in the name and style of Jai Ganesh Petroleum at village Mitana on Morbi-Rajkot road and he was having wholesale and retail licence for dealing in cement diesel crude and kerosene. kerosene remained well maintained and distributed in the society. Thereafter follows ground No. 3 which recited that the petitioner was carrying on partnership business in the name and style of Jai Ganesh Petroleum at village Mitana on Morbi-Rajkot road and he was having wholesale and retail licence for dealing in cement diesel crude and kerosene. Thereafter in paras of the grounds is recited the result of the on-spot inspection made at the petitioners pump on 31-5-1986. Therein it is mentioned that deficit of various items of essential commodities was found reflected from the account books maintained by the petitioner on spot and they related to deficit of 400 litres of crude (retail) 482 litres of diesel and 2778 litres of kerosene. Thereafter follow grounds Nos. 5 6 and 7 (second) 6 wherein different incidents are cited showing the alleged irregularities committed by the petitioner while acting as a dealer of kerosene and also alleging clandestine and illegal diversion of various quantities of kerosene by the petitioner under the transactions mentioned in these paras. Then follows ground No. 7 which stated that during the inquiry it was found that opening balance and the sale price of commodities were not properly mentioned upto date in the Board. That sale of diesel on 30-5-1986 was not shown in the stock register and that indicated that partnership firm of the petitioner was not maintaining proper accounts. Having mentioned these grounds the conclusion to which the detaining authority reached was indicated as under. Looking to the aforesaid facts it became clear that the petitioner had committed breaches of clause 23 of the Gujarat Essential Commodities (Licensing Control and Stock Declaration) Order 1981 and had also committed breaches of conditions Nos. 4-and 9 of the licence. Having mentioned these grounds the conclusion to which the detaining authority reached was indicated as under. Looking to the aforesaid facts it became clear that the petitioner had committed breaches of clause 23 of the Gujarat Essential Commodities (Licensing Control and Stock Declaration) Order 1981 and had also committed breaches of conditions Nos. 4-and 9 of the licence. It is then recited that having done 80 the petitioner had committed offences under the provisions of the Essential Commodities Act 1950 and looking to the gravity of the aforesaid acti-vities and with a view to preventing the petitioner from indulging in such illegal activities forthwith and also with a view to preventing the petitioner from indulging in such activities in future the State of Gujarat had passed the order of detention against the petitioner on 21-7-1986 ( 4 ) IN the last part of the grounds of detention it has been recited that with a view that the petitioner may effectively represent against the detention order whatever statements panchnama and documents were available to the State Government and on the basis of which the Government had passed the detention order against the petitioner were being supplied to the petitioner for his use. When we turn to the index of documents supplied to the petitioner alongwith the grounds we find 17 such documents listed in the index which is at Annexure J to the petition. It is not in dispute that some of the documents listed in the said index do refer to the alleged illegalities and irregularities committed by the petitioner while dealing in diesel oil and crude oil. The aforesaid are the relevant recitals in the grounds of detention and cross-section of the supporting documents mentioned in the list of documents. Recitals in these grounds therefore project a picture wherein it is found that the detaining authority was subjectively satisfied that the petitioner had committed breaches of the provisions of the Order as well as the Essential Commodities Act 1955 as reflected by paras 4 5 6 (second) 6 and 7 of the grounds and had based his satisfaction on the material indicated in these grounds. If that is so it becomes at once clear that the subjective satisfaction of the detaining authority against the petitioner for passing the above detention order was based not only on the alleged illegalities committed by him as a dealer in kerosene but also as a dealer in diesel and crude. It is not in dispute that diesel and crude are also petroleum products. However when the detention order on the one hand indicates that the subjective satisfaction of the detaining authority is based on the need to preventively detain the petitioner with a view to preventing him from disturbing supply of kerosene which is a petroleum product the grounds of detention on the other hand project a wider subjective satisfaction about the need to preventively detain the petitioner for his alleged nefarious activities in connection with dealing in not only kerosene but also other types of petroleum products i. e. crude and diesel. Thus the grounds of detention when read with the order of detention project a picture of confused subjective satisfaction permeating the grounds of detention as supporting the detention order. It is not clear as to whether the subjective satisfaction of the detaining authority was based only on the infraction of the relevant provisions of the Act and the order by the petitioner qua kerosene or whether it was based on the infraction by the petitioner of these provisions also qua crude and diesel which were also admittedly petroleum products. Thus the satisfaction as reflected by the grounds supporting the detention order is found to be equivocal confusing and therefore not a clear cut genuine satisfaction supporting the detention order. The aforesaid conclusion to which we reach has its effect on the petitioners fundamental right under Article 22 (5) of the Constitution of making an effective representation against the detention order based on the grounds of detention supplied to him. He would be kept guessing as to whether he was being detained because he had allegedly committed infraction of the relevant provisions of the Order and the Act as a dealer in kerosene or whether he was being detained also on the ground that he had committed infraction of the Order and the Act as dealer in crude and diesel or both. Hence the grounds of detention as framed in the present case also have resulted in violation of the detenus fundamental right under Article 22 (5) of the Constitution of India. In any case the above grounds reflecting the subjective satisfaction have shown that there was no clear cut genuine subjective satisfaction underlying the detention order as reflected by these grounds which obviously were furnished to the petitioner in proof of satisfaction reflected by the grounds in support of the detention order. Thus on both these grounds the aforesaid order is liable to fail and has to be quashed and set aside. ( 5 ) MR. Trivedi for the respondents vehemently submitted that the detention order mentions satisfaction of the detaining authority about the need to preventively detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of articles viz. petroleum products and that merely because kerosene was mentioned in the bracket it did not detract from the wider connotation of the phrase petroleum products. It is not possible to agree with the aforesaid contention for the simple reason that petroleum product is a phrase of wider import. It would include not only kerosene but it would also include crude and diesel. But so far as the order of detention is concerned by mentioning in bracket only kerosene the detaining authority has sought to convey to the petitioner that he was satisfied about the need to preventively detain the petitioner with a view to avoiding any disturbance to the maintenance of supplies of kerosene which was a petroleum product and no other product was kept in view by the detaining authority while passing the said order. However when we go to the grounds of detention the situation becomes worse for the respondents. As already discussed earlier the grounds of detention are overlapping in nature. In grounds No. 2 one type of satisfaction is projected while in the last part below ground No. 7 the conclusion to which the detaining authority has reached reflects entirely a different type of subjective satisfaction which would include not only the alleged infraction of the provisions of the Order and the rules qua kerosene but also qua crude oil and diesel. Consequently it must be held that the satisfaction recorded by the detaining authority in different parts of the grounds of detention is of overlapping and confusing nature and consequently it is not possible to agree with the contention of Mr. Trivedi for the respondents that the satisfaction is a genuine clear cut one or that it does not prejudice the petitioner in any manner. It has also to be kept in view that as there is no provision in the Act analogous to sec. 5a of COFEPOSA or sec. 6 of PASSA the respondents cannot fall back on any statutory fiction of deemed satisfaction on legally permissible material de hors invalid material. (The rest of the Judgment is not material for the reports.) rule made absolute. .