Ramji Sunaji Marwari (detenu) v. State of Gujarat — 1988 DIGILAW 172 (GUJ)

JUDGMENT : B.S. Kapadia, J. The present petition is filed by the detenu against the order of detention dated 28-4-1988 passed by the Government of Gujarat under sub-section (1) of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, on it being satisfied with respect to the present petitioner-detenu that with a view to preventing him from acting in any manner prejudicial to the Maintenance of Public Supplies of Commodities, i.e. edible oil and palm-olein essential to the community, it was necessary to pass the order of detention against the petitioner. In pursuance of the said order the petitioner was detained on 13-3-1988. He was also served with the grounds of detention in Jail. 2. On perusal of the grounds it appears that he was working as a broker for delivering essential commodities like palm-olein, foodgrains like wheat, etc. to the licence-holders from the Government godowns. It was so admitted by the petitioner in his statement dated 27-11-1987. From the statement of Mohmad Hanif dated 27-11-1987, it was found that whatever quantity of pamolein was seized from him was purchased by him from the present petitioner. Said Mohmad Hanif had also stated that other six barrels of palm-olein were purchased by him from the petitioner and he had paid the price at the rate of Rs. 3600/- per barrel and that said Mohmad Hanif had sold the same to the customers charging Rs. 330/- to Rs. 350/- per tin and thereby he had made profit of Rs. 30/- to Rs. 33/- per tin. In the statement of the petitioner he had stated that he knew said Mohmad Hanif since last one month and that he had supplied pamolein oil to him. The petitioner had further stated in his statement that the brokers at Camp godown are disposing of the quantity of pamolein oil and the above referred quantity of pamolein oil are part of it and that till recording of the statement he had unauthorisedly given seven barrels of pamolein oil (1330 Kgs.) to said Shri Mohmad Hanif Memon. He had further referred to the names of other brokers namely Kapurji Navaji and Garbaji Hcmaji from whom he had purchased pamolein oil. He had further referred to the names of other brokers namely Kapurji Navaji and Garbaji Hcmaji from whom he had purchased pamolein oil. One barrel he had purchased from Kapurji and six barrels he had purchased from Garbaji and he had sold all the seven barrels to said Memon at the price of Rs. 3600/- per barrel. He had also admitted in statement that unauthorisedly he had received the profit and/or gain of Rs. 100/- or Rs. 50/- per barrel. Reference was also made to the statement made by Kapurji Navaji as well as Garbaji Hemaji wherein they had also admitted to have sold unauthorisedly palm-olein oil to the present petitioner. From the above material it was concluded that the petitioner was aiding and abetting said Mohmad Hanif in his activity of illegally disposing of the quantity of pamolein oil. In the grounds of detention it was also pointed out that pamolein oil is essential commodity and it is being distributed to the cardholders through fair price shops. The said quantity of palm-olein oil was obtained illegally by the present petitioner and he had aided and abetted said Mohmad Hanif in his aforesaid illegal activities. It is also mentioned in the grounds of detention that the petitioner had abetted said Shri Memon in committing breach of the Central Orders and the provisions of the Essential Commodities Act and there-fore, the activities of the petitioner was punishable under Sections 7 and 8 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as ‘the act'). 3. The detaining authority had also considered various alternative less drastic remedies before being satisfied on the point of necessity of passing the order of detention and accordingly he passed the said order. 4. In this petition various grounds have been raised by the petitioner challenging the legality and validity of the impugned order. However, at the time of hearing Mr. M. L. Patel, learned Advocate for the petitioner has pressed before us the following points only : (1) That the petitioner does not know how to read and write Gujarati language and he knows only Hindi and he demanded the grounds of detention in Hindi in his representation dated 21-5-88 and as he has not been served with the grounds of detention in Hindi which he knows, no adequate opportunity to make representation was given to him. Therefore, the continued detention of the petitioner is bad and illegal. (2) That the State Government has failed to report the fact of detention of the petitioner to the Central Govt., within seven days as required under Section 3 (4) of the act and therefore, the continued detention of the petitioner is bad and illegal. (3) That the detaining authority has not considered the less drastic remedies before arriving at the subjective satisfaction on the point of necessity of passing the detention order. (4) That there is delay in passing the order of detention as the incident has taken place on 24-11-1987 while the order was passed on 28-4-88. 5. The first point is raised by the petitioner in para-4 of the petition wherein he has submitted that he came to Ahmedabad since last about five years and that he has not studied Gujarati and he does not know how to read and write Gujarati language. It is further mentioned that he speaks Marwadi language and that he is able to understand Hindi also; that he learnt only to make his signature in Hindi; in fact he has not gone to any school and has learnt very little to write and read in Hindi; that he was not read over and explained the contents of the grounds and documents though the grounds of detention and documents are in Gujarati language except the last page which is in English and therefore, the petitioner's fundamental right guaranteed under Article 22 (3) of the Constitution of India to communicate the grounds is violated and therefore, the continued detention is bad and illegal. 6. On this point affidavit-in-reply is filed on behalf of the respondent-State Govt, and in para-4 thereof it is pointed out that the contention raised by the petitioner is devoid of any substance and it is after-thought. It is further mentioned in the said affidavit that at the time of recording of the statement of the petitioner, which was recorded in Gujarati, the petitioner has not stated that he does not know Gujarati language or that he understands Hindi only. It is further mentioned in the said affidavit that the statement recorded on 27-11-1988 was read over to him and he has stated in the endorsement made below the said statement that he is able to understand Gujarati and after understanding the contents of the statements he has signed thereunder. It is further mentioned in the said affidavit that the statement recorded on 27-11-1988 was read over to him and he has stated in the endorsement made below the said statement that he is able to understand Gujarati and after understanding the contents of the statements he has signed thereunder. It is further mentioned in the said affidavit that the petitioner was residing in Ahmedabad since last seven years and that he has made representation to the Advisory Board on 19-6-1988 in Gujarati language. 7. After the said affidavit-in-reply is filed the petitioner has filed affidavit-iii-rejoinder today wherein he has stated that the representation dated 21-5-1988 was made by him in Hindi language. According to him, he had made representation on 21-5-1988 to the State Government and the Central Government. However, he has further mentioned in the said affidavit-in-rejoinder that at the time of hearing of his case before the Advisory Board there were some detenu with him, who knew Gujarati well and one of them had drafted a representation to the Advisory Board in Gujarati language and he had signed below the said representation in Hindi. According to him, he had simply signed below the same in Hindi and that the same was read over and explained to him in Hindi. It may be stated that on the file there is a representation made by the petitioner to the Advisory Board and there is also an understatement to the effect that it was received on 15-6-1986. The same is also attested by the Jailor, Detenu Branch, Ahmedabad Central Prison. The said representation is in Gujarati language. 8. For the purpose of finding out that the petitioner actually understands Gujarati language there is other indication apart from the said representation written in Gujarati. The statement of the petitioner was recorded on 27-11-1987 and on perusal of the same in original which has been placed in our hands by the learned A. G. P. Mr. R.R. Tripathi, it is clear that it was recorded in Gujarati language and that he has signed below the same in Hindi language. Further, in the said statement in the last paragraph it is clearly stated that what is stated above in his statement is true and correct. The said statement was read over to the petitioner and he had fully understood the same. Further, in the said statement in the last paragraph it is clearly stated that what is stated above in his statement is true and correct. The said statement was read over to the petitioner and he had fully understood the same. The petitioner had admitted the said statement to have been written according to his replies. 9. It is significant to note that though affidavit-in-rejoinder so filed by the petitioner and has tried to explain the representation made by him in Gujarati to the Advisory Board he has not uttered a single word with regard to his statement recorded on 27-11-1987. It is, therefore, clear that petitioner is pleading ignorance about his understanding the Gujarati language. If the petitioner would not have understood the Gujarati language he would not have so stated in the statement and signed the same which is Gujarati. From this it is clear that what he has stated regarding his representation dated 15-6-88 which is in Gujarati, in his affidavit-in-rejoinder is also an after-thought that it was explained to him in Hindi. The said Gujarati representation as also the statement of the petitioner referred to herein-above clearly establish that the petitioner fully understands Gujarati language and only for the purpose of raising that ground he has pleaded ignorance about Gujarati language. In that view of the matter we do not find any substance in the first point raised by Mr. Patel. 10. In this connection it is also important to state that the petitioner himself has stated in para-4 of the petition that he has only learnt how to put his signature in Hindi otherwise he does not know Hindi and therefore, the learned Advocate for the petitioner has mentioned that "he has learnt very little to write and read in Hindi". When the petitioner knows Gujarati language there is no question of giving him the documents translated in other language, i.e. either Hindi or Marwadi. It is also clear from the affidavit-in-reply filed by the Deputy Secretary to the Govt., of Gujarat that the contents of the detention order and committal order were explained to the detenu by the PSI, PCS at the time of service of the same, in Gujarati language which the petitioner understands. It is also clear from the affidavit-in-reply filed by the Deputy Secretary to the Govt., of Gujarat that the contents of the detention order and committal order were explained to the detenu by the PSI, PCS at the time of service of the same, in Gujarati language which the petitioner understands. The endorsement made below the aforesaid orders and the grounds of detention corroborate what is stated in para 3 of the affidavit-in-reply, namely, the petitioner-detenu was explained the contents of the order of detention and committal order in Gujarati language by the PSI, who served the same on the petitioner. The grounds of detention and other documents were served on the petitioner in jail. When the grounds of detention and other documents which are in Gujarati language were served on the petitioner in jail and as the petitioner understands Gujarati language, it is not necessary to translate or explain the contents of the same in any other language. In above view of the matter we do not find any substance in the first point raised on behalf of the petitioner. 11. The second point raised on behalf of the petitioner is that in the present case the State Government has passed the order under Section 3 of the Act and therefore, under sub-section (4) of Section 3 of the Act it was the duty of the State Government to report within seven days the fact of detention of the present petitioner to the Central Government together with grounds on which the order has been made along with -other particulars as the State Govt., feels to have hearing on the necessity of the order. 12. It is clear that the order is passed on 20-4-1988 and our attention was drawn to a letter addressed by the State Government to the Under Secretary to the Govt., of India, Ministry of Food and Civil Supplies, Shastri Bhavan, New Delhi, on the same day, i.e. 28-4-1988. There is also an endorsement written with ink "Issued on 28-4-1988". Not only that but Mr. Nanavati, learned Advocate appearing for Mr. M.B. Bhagat Addi. Central Govt. Standing Counsel for the Union of India, has pointed out to us from the affidavit of Din Dayal that the said letter has been received by the Central Government on 4-5-1983. There is also an endorsement written with ink "Issued on 28-4-1988". Not only that but Mr. Nanavati, learned Advocate appearing for Mr. M.B. Bhagat Addi. Central Govt. Standing Counsel for the Union of India, has pointed out to us from the affidavit of Din Dayal that the said letter has been received by the Central Government on 4-5-1983. When that is so, not only the report is sent within seven days, but it is received by the Central Govt., on the 7th day and therefore, there is no substance in the second point. Hence we reject the same. 13. The third point raised on behalf of the petitioner is that the detaining authority has not considered the criminal prosecution that can be launched against the petitioner as also the less drastic remedies before passing the detention order against the petitioner. This point is raised by petitioner in paras 12 and 13 of the petition. 14. In the affidavit-in-reply filed on behalf of the respondent-State it is stated in para-12 that the detaining authority was aware of the aspect of lesser drastic remedy at the time of passing the order of detention and that on the basis of the material placed before the detaining authority, the detaining authority being subjectively satisfied that the alternative steps will not be effective to curb the activities of the petitioner and as a last resort has passed the order of detention. It is further pointed out in the said reply-affidavit that so far as the cancellation of licence is concerned, there is no such question in the present case as he does not hold any licence. So for as criminal prosecution is concerned, it is pointed out that it was in the mind of detaining authority that the criminal prosecution cannot be short-circulated or circumvented by ready resort to preventive detention, but the order of detention is passed as a measure of last resort having come to definite conclusion that steps under the provisions of ordinary law are not to be effective to curb immediately the illegal activities of the petitioner. It is also stated in para-13 of the said affidavit-in-reply that there is no question of discontinuing the petitioner as a broker by the office of the Supply Department inasmuch as the detenu does not hold any licence as a broker given by the Supply Department. 15. It is also stated in para-13 of the said affidavit-in-reply that there is no question of discontinuing the petitioner as a broker by the office of the Supply Department inasmuch as the detenu does not hold any licence as a broker given by the Supply Department. 15. It is not important to note that in the grounds of detention it is clearly mentioned that in taking steps of criminal persecution it would take long time in the proceedings and in taking such steps the petitioner is likely to be released on bail and is likely to continue his illegal activities. Other alternative of departmental action was also considered to the effect that there was no question of taking any departmental action as he was not holding any licence or authorisation. Thus, from the above affidavit-in-reply as also grounds of detention it is clear that the detaining authority was aware of those alternative steps and in fact, they were considered before considering the necessity of passing detention order against petitioner, and as a last resort. In that view of the matter we do not find any substance in this point also. 16. The last point raised by Mr. Patel on behalf of the petitioner is that there is delay in passing the order of detention inasmuch as the incident has taken place on 24-11-1987 while the order is passed on 28-4-1988. 17. In this point the State Government has filed affidavit-in-reply and in para-15 thereof. It is clearly pointed out that the incident is of 26-11-1987 and that the Controller of Food and Civil Supplies has sent the proposal to the State Govt., on 16-1-1988. It is also pointed out in the said affidavit-in-reply that the Government in Food and Civil Supplies Department from January 1988 to April 1988 had received 24 proposals that even prior to January 1988 there were pending proposals which were required to be dealt with in chronological order along with the aforesaid proposals and that during the month of January 1988 to April 1988 the State Govt., has passed number of orders and has also granted approval to various orders passed by different District Magistrate. The details of the same arc also given in the said affidavit-in-reply. The details of the same arc also given in the said affidavit-in-reply. It is also pointed out in the said affidavit-in-reply that each proposal of detention received by the State Govt., takes at least 3 to 19 days on an average in taking decision by the State Govt., that in such case in which detention order is passed by the State Govt., number of pages including detention order, committal order, grounds of detention and supporting documents of about 200 pages on an average are required to be prepared; that in addition to that number of detention matters under the Act are required to be attended to in this Court by the Department that besides this the Department has to handle the work of consideration of representations made by the detenu which work is to be attended in most urgent manner and on average about 25 to 30, representations are received every month and that the Department has to handle the work of parole matters in connection with the detenu under the Act. It is also pointed out that these matters take considerable time and in this view of the matter the time taken from 16th January 1988 to 28th April 1988 cannot be said to be unreasonable by any stretch of imagination and it is, therefore, submitted that there is no delay in passing the order of detention. Under these circumstances it cannot be said that there is any delay much less unreasonable delay rendering the grounds of detention stale or illusory. It was also submitted that in above view of the matter it cannot be said that the nexus between the incident and the order of detention is broken or disputed. 18. On the point of delay prior to 18-1-1988 one Mr. D.C. Khacker, Assistant Controller of Food and. Civil Supplies, Ahemadabad, has filed affidavit-in-reply wherein he has pointed out that police bad arrested one Mohammad Hanif Bilal Memon for keeping the stock of 210 Kgs. of pamolein and it was brought to the Raipur Police Station on 26-11-1987. It is further pointed out in the said affidavit-in-reply that thereafter the police investigated the said case and he collected the investigation papers from the police and also took the custody of the stock of pamolein and started further proceedings. of pamolein and it was brought to the Raipur Police Station on 26-11-1987. It is further pointed out in the said affidavit-in-reply that thereafter the police investigated the said case and he collected the investigation papers from the police and also took the custody of the stock of pamolein and started further proceedings. According to him, it was found during the inquiry that the said pamolein was required to be distributed through, fair-price shop in the name and style of Jay Chamunda Consumers' Co-operative Society and therefore, the said shop was also investigated. He has further stated in the said affidavit that thereafter the papers were under preparation and a note was placed on 28-11-1987 before the Deputy Controller, who after servicing of the same placed before the Controller and after-the same being approved by the Controller a proposal draft was put up on 11-1-1988 along with all relevant material and thereafter from 11-1-1988 to 16-1-1988 necessary copies were prepared and on 16-1-1988 the proposal duly typed and prepared was sent for the consideration of the Govt., along with all the case papers. 19. It may be noted at this stage that no affidavit-in-rejoinder has been filed by the petitioner controverting the averments made in the said affidavits. Therefore, there is no reason to disbelieve what is stated in the said affidavit--in-reply filed for explaining the delay both before making the proposal for detention and thereof upto the date of passing of the detention order. It may be mentioned at this juncture that in the case of Rajendrakumar v. State of Gujarat reported in AIR 1980 SC 1255 the Supreme Court has held that while considering delay in passing the order what the court has to keep in mind is whether the grounds have become stale or illusory and that there is no nexus between the incident and the detention order. If no such grounds exist such orders should not be quashed on the ground of delay in passing such orders. Normally, the detention order are passed keeping in mind the future prognosis based on the date of past incidents. Looking to the past incidents the future prognosis was to the effect that unless the illegal activities of the petitioner are curbed by passing the order of detention there arc no chances of preventing such activities. Normally, the detention order are passed keeping in mind the future prognosis based on the date of past incidents. Looking to the past incidents the future prognosis was to the effect that unless the illegal activities of the petitioner are curbed by passing the order of detention there arc no chances of preventing such activities. When that is so, it cannot be said that in the present case there was no nexus between the incident and passing of the detention order. In event it cannot be said that the grounds have become stale and/or illusory. Under the circumstances we do not find any substance on the point of delay in passing the detention order also. 20. As all the points raised by Mr. Patel on behalf of the petitioner fail the petition deserves to be dismissed and is hereby dismissed. Accordingly, rule is discharged. Petition dismissed.