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2001 DIGILAW 504 (ORI)

BINOD KUMAR GUPTA v. STATE OF ORISSA

2001-11-12

B.P.DAS

body2001
JUDGMENT : B. P. Das, J. - This writ application has been filed challenging the initiation of proceeding against the petitioners u/s 3(1)(a) of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 ( for short the 'Act'). 2. According to the petitioners, petitioner No. 1 is a licensee Sub-Wholesaler of kerosene and petitioner No. 2 is the power of Attorney holder of petitioner No. 1. On verification of relevant books of accounts, the Civil Supplies Officer, Bolangir detected certain irregularities in the stock of kerosene oil. The show cause notice was issued under Annexure-1, and in reply to the same, petitioner No. 1 replied that he had not committed any irregularity and illegality in the stock of kerosene and there was no occasion for making false books of accounts. According to petitioners, while the matter stood thus opposite party No. 3, lodged an F.I.R. on 23,3.2001. Basing upon the said information, opposite party No. 2 initiated a Criminal Misc. Case No. 6 of 2001 u/s 3(1)(a) of the Act. The Collector by his order dated 26.4,2001 directed for causing production of the petitioners before him on 3.5.2001. When the petitioners did not present themselves before the Collector, warrant of arrest was issued. 3. According to the learned counsel for the petitioners, the District Magistrate in contravention of the provisions of the aforesaid Act passed order under Annexure-3 illegally directing issue of warrant of arrest because she has not mentioned in the order Annexure-3 that the petitioners absconded and concealed themselves so that the order could not be executed or there was any reason to take coercive steps for issuance of warrant. According to the petitioners, the District Magistrate is required to make a report jn writing of the fact to the Metropolitan Magistrate or a Judicial Magistrate having jurisdiction over the place where the said person ordinarily resides, and the provisions of Sections 82,83,84 and 85 of the Criminal Procedure Code ( for short the 'Cr.P.C.') are to apply in respect of the said person. According to the petitioners, the District Magistrate has not given anything in writing to the Judicial Magistrate having jurisdiction of the place of residence of the petitioners to invoke the power of issuance of warrant of arrest. According to the petitioners, the District Magistrate has not given anything in writing to the Judicial Magistrate having jurisdiction of the place of residence of the petitioners to invoke the power of issuance of warrant of arrest. In addition to that, the case of the petitioners, is that, the District Magistrate instead of complying with the provisions of Section 3 of the Act passed an order indicating the reason to believe that in respect of petitioners a detention order had been made, and wrongly she directed the officer-in-charge of Patnagarh P.S. for production of petitioners, which is in contravention of the provisions of Section 7. Further, it is averred in the writ application that no document regarding grounds and particulars of necessity for passing such an order as per Annexure-3 has been served either on the petitioners or an their counsel and the central Govt. has not intimated to the petitioners regarding confirmation and approval of the order passed by the District Magistrate as per Annexure-3. Taking all the grounds together the counsel for the petitioners submits that Annexure-3 is an illegal order which should be quashed. 4. The District Magistrate was present in Court in person and produced the relevant records. It appears from the record that on 26.4.2001, the District Magistrate passed on order which is inter alia, stated thus: " In view of the above facts, I am satisfied that you have committed offences. Punishable under the Essential Commodities Act, 1995. i.e., supplied and distribution of kerosene in Centre Vendia of Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993. It is hereby ordered that Sri Ghanashyam Gupta S/o Tarachand Gupta, power of attorney holders of Sri B. K. Gupta, K. Oil, Sub-Whole-saler at Kantabanji functioning for Turekela Block and Shri B. K. Gupta of Turekela Dist. Bolangir be detained u/s 3(1)(a) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 to prevent them from acting in any manner prejudicial to maintenance of supplies of Commodities (Kerosene) essential to the Community." 5. On 3.5.2001 warrant of arrest was issued against the accused persons and the OIC., Turekela P.S. was directed to produce the accused persons. As warrant of arrest was not executed, reminder was issued to S.P. Bolangir to direct the OIC for execution of warrant in time. The Section 3(1)(a) of the Act speaks as follows: "3. On 3.5.2001 warrant of arrest was issued against the accused persons and the OIC., Turekela P.S. was directed to produce the accused persons. As warrant of arrest was not executed, reminder was issued to S.P. Bolangir to direct the OIC for execution of warrant in time. The Section 3(1)(a) of the Act speaks as follows: "3. Power to make orders detaining certain persons-(1). The Central Government or a State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government specially empowered for the purposes of this Section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government specially empowered for the purposes of this Section by that Government, may by that Government, may if satisfied, with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community it is necessary so to do, make an order directing that such person be detained. Explanation : For the purpose of this sub-section, the expression" acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" means : (a) Committing or instigating any person to commit any offence punishable under the Essential Commodities Act. 1955 ( 10 of 1955) or under any other law for the time being in force relating to the control of the production, supply or distribution of or trade and commerce in any commodity essential to the community, or 6. As it appears (Section 3(1)(a) of the Act does not contemplate initiation of proceeding. It empowers the Central Government or the State Government or specified Officer thereof to issue order of detention detaining the person engaged in the activities as contemplated under the Act. Sub-section (2) of Section 3 empowers the District Magistrate, if satisfied as provided in Sub-section (1) to exercise the powers conferred by Sub-section (1) of Section 3 Section 4 of the said Act relates to execution of detention orders, which speaks as follows : 4. Execution of detention orders : A detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973." 7. Execution of detention orders : A detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973." 7. From this it appears that the order of detention is self-executable and no initiation of criminal proceeding is necessary in this case. The Criminal proceeding so initiated in the present case may be an irregularity but that cannot take away the effect of the satisfaction of the authority u/s 3(1)(a) of the Act. 8. This being the position, initiation of criminal proceeding is quashed. This order will not stand on the way of the appropriate authority under the Essential Commodities Act to take appropriate action u/s 3(1)(a) of the Act. Accordingly, the writ application is disposed of. The records be sent back to the District Magistrate, Bolangir forthwith by registered post. 9. Writ application disposed of.