Kapurji Navaji Khatik v. Deputy Secretary, Food & Civil Supplies Department
1988-09-20
A.P.RAVANI, B.S.KAPADIA
body1988
DigiLaw.ai
JUDGMENT : A.P. Ravani, J. The petitioner has challenged the legality and validity of the order of detention passed under the provisions of Section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980. The order is dated April 28, 1988. It is disclosed in the grounds of detention served upon the petitioner that he was working at the Government godown as broker where the essential commodities such as wheat, rice, pamolene oil, etc., are stored. From these godowns when goods were cleared he used to work as broker on behalf of the businessmen for taking delivery. He admitted this fact in the statement given before the appropriate authority. On November 26, 1987 when the house of one Mohammed Hanif Bilalbhai was searched one empty barrel of pamolene oil and 15 full tins of pamolene oil weighing about 210 kgs. were found and seized. On inquiry it was found that the said Mohammed Hanif Bilalbhai had purchased pamolene oil from one Dalal Ramaji Sunaji after paying price of Rs. 3600/-; said Dalai Ramaji Sunaji in turn said that the aforesaid pamolene oil was purchased by him from detenu. The detenu admitted in his statement that out of the two permits of Jay Chamunda Consumer Co-operative Stores he had utilised one permit for the particular barrel which purchased by him for Rs. 3400/-; that in the entire transaction he had received commission of Rs. 50/-. It was alleged that the pamolene oil was an essential commodity, and by facilitating the aforesaid transaction of sale of pamolene oil to Mohammed Hanif Bilalbhai the petitioner had abetted the illegal activity of Mohammed Hanif Bilalbhai. It was alleged that the petitioner had illegally collected the stock of pamolene oil which was meant for distribution to the cardholders and that the same pamolene oil was again distributed so as to adversely affect the distribution system. On overall consideration of the material placed before him, the detaining authority came to the conclusion that the petitioner was required to be detained so as to prevent him from acting in any manner prejudicial to the maintenance of supply of essential commodities. 2. The order of detention together with the grounds of detention was served upon the petitioner on the same date. The petitioner has challenged the legality and validity of the same by filing this petition. 3.
2. The order of detention together with the grounds of detention was served upon the petitioner on the same date. The petitioner has challenged the legality and validity of the same by filing this petition. 3. It is contended that the representation made to the Central Government against the order of detention has not been considered by the Government promptly and with expedition. Therefore the continued detention of the petitioner is illegal and void. In this respect affidavit in reply has been filed on behalf of the Central Government by one Dau Dayal, Deputy Secretary in the Ministry of Food and Civil Supplies (Department of Civil Supplies), New Delhi. As disclosed in para 4 of the affidavit-in-reply it is clear that much of the time has been taken between the two Governments, i.e. the Central Government and the State Government in correspondence and in calling for the paro-wise commants and sending the para-wise comments and also for English translation of the representation. The details given in para 4 of the affidavit-in-reply satisfactorily explain the entire period between the date of receipt of representation by the Central Government, i.e. May 13, 1988 and the date on which the same has been finally decided, i.e. June 1, 1988. It cannot be said that there is delay, much less inordinate and unexplained delay in disposing of the representation submitted by the petitioner detenu. Hence the ground taken on the basis of alleged delay fails. 4. It was contended that the Advisory Board has not submitted its report within the period seven weeks as prescribed in the statute. As disclosed in the affidavit-in-reply the report of the Advisory Board has been sent to the State Government on May 25, 1988, i.e. within one month from the date of detention. As per the relevant provisions of the statute, the report of the Advisory Board should reach the State Government within seven weeks. Therefore, this ground has also no merits and the same is required to be rejected. 5. The learned counsel for the petitioner submitted that the document pertaining to investigation and inquiry of the shop of Jay Chamunda Consumer Co-operative Stores have not been supplied to the detenu and therefore the right of the detenu of making representation against the order of detention is adversely affected.
5. The learned counsel for the petitioner submitted that the document pertaining to investigation and inquiry of the shop of Jay Chamunda Consumer Co-operative Stores have not been supplied to the detenu and therefore the right of the detenu of making representation against the order of detention is adversely affected. However, if one goes through the grounds of detention it becomes abundantly clear that the detaining authority has not relied upon the transaction of Jay Chamunda Consumer Co-operative Stores. It is only an incidental reference which has been made in the affidavit-in-reply filed by one Mr. Khachar, investigating officer who has explained the alleged delay in passing the order of detention. Even in the grounds of detention when reference is made to Kalpeshbhai and Jayantibhai of the aforesaid Jay Chamunda Consumer Co-operative Stores it is abundantly clear that the said reference is only incidental. In the grounds of detention the activity which has been made the basis of detention order is the dealings of the petitioner in pamolene oil. This consists of removing the pamolene oil from the Government godowns on the basis of the permit received from the aforesaid Kalpeshbhai and Jayantibhai and then selling the same to broker Ramaji Sunaji who in turn had sold the same to Mohammed Hanif. As disclosed in the affidavit-in-reply this aspect of the illegal activity has been even admitted by the petitioner-detenu in his own statement. Therefore, the incidental reference to the investigation of the shop of Chamunda Consumer Co-operative Stores cannot be made the basis of contention that the petitioner-detenu was required to be supplied with the documents pertaining to that investigation. Hence this contention also fails. 6. The learned counsel for the petitioner submitted that the detaining authority has not taken into consideration the less drastic remedy of externment and/or criminal prosecution. Prima facie we are not inclined to believe that the provision of Section 56(a), (b) of Bombay Police Act which provides for externment would apply even in cases of anti-social activities such as black-marketing, etc., in the State of Gujarat. Even assuming that this provision applies to the State of Gujarat, it cannot be said that the detaining authority was not alive to the aspect of alternative remedy. The detaining authority is not required to refer to each and every possible alternative measures.
Even assuming that this provision applies to the State of Gujarat, it cannot be said that the detaining authority was not alive to the aspect of alternative remedy. The detaining authority is not required to refer to each and every possible alternative measures. Overall reading of the affidavit-in-reply and the grounds of detention if it can be shown that the detaining authority was alive to this aspect, it cannot be said that the satisfaction arrived at by the detaining authority is vitiated on account of the fact that this aspect has been left out of consideration. 7. A similar question arose before this very Bench in Special Criminal Application No. 229 of 1988 decided on 29-8-1908. In that case it was contended that in the grounds of detention the cases registered against the detenu were relied upon and they were all cases pertaining to responsible offences. The detenu was released on bail in all the aforesaid cases by the competent courts. The detaining authority ought to have taken into consideration the circumstances as to why the detenu was required to be preemptively detained on the very same charge. The competent court had released him on bail. In that case reliance was sought to be made on the decision rendered by this very Bench in Special Criminal Application No. 587 of 1987 decided on December 17, 1987, after referring to the observations made by this High Court in the aforesaid case this Court discussed the latest position of law in paras 16, 17 and 18. In view of the aforesaid position of law the contention that the detaining authority has not taken into consideration the less drastic remedy of externment and/or criminal prosecution cannot be accepted. Because on overall reading of the grounds of detention and the affidavit-in-reply it becomes abundantly clear that the detaining authority was aware about the alternative remedies of externment and/or criminal prosecution available under ordinary law of the land. 8. The learned counsel for the petitioner submitted that in the grounds of detention it is not mentioned that the petitioner has a right to make representation before the Advisory Board.
8. The learned counsel for the petitioner submitted that in the grounds of detention it is not mentioned that the petitioner has a right to make representation before the Advisory Board. This contention cannot be accepted for the simple reason that in the grounds of detention in the last paragraph it is mentioned as follows VERNACULAR MATTER If read reasonably it clearly indicates that the detenu has been informed that he has a right to make representation before the Advisory Board. Simply because the words that he has a right to remain present and to defend himself are not used, it cannot be said that he has not been informed about his right. Such too technical reading is not permissible. The grounds of detention are also required to be read reasonably and in practical manner. There is no substance in the petition. No other contention is raised. Hence rejected. Rule discharged. Rule discharged.