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2002 DIGILAW 326 (ORI)

SRI PANKAJ KUMAR TIBREWAL v. GOVERNMENT OF ORISSA

2002-06-17

A.K.PATNAIK, M.PAPANNA

body2002
JUDGMENT : A.K. Patnaik, J. - This is a Habeas Corpus petition challenging the order dated 11.3.2002 passed by the District Magistrate, Sundargarh detaining the petitioner u/s 3(2)(a) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (in short "the Act") and the order of the Government of Orissa dated 20.3.2002 approving the said order or detention and for directing the opposite parties to release the petitioner from such detention forthwith. 2. The relevant facts briefly are that the petitioner is a partner of a firm M/s. Harduttrai Ranglal which carries on business at Biramitrapur in the district of Sundargarh of Orissa. The said firm is a wholesale licensee under the Orissa Kerosene Control Order, 1962 made by the State Government u/s 3 of the Essential Commodities Act, 1955. On 11.3.2002, the District Magistrate, Sundargarh in exercise of his powers conferred in Subsection (2)(a) of Section 3 of the Act directed that the petitioner be detained in the special Jail, Rourkela until further orders with a view to prevent him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community or with a view to making gain in any manner which directly or indirectly defeat or tend to defeat the provisions of Clause 3 of the Orissa Kerosene Control Order, 1962. Pursuant to the said order of detention the petitioner was detained on 13.3.2002. The grounds of detention were prepared and signed by the District Magistrate, Sundargarh on 15.3.2002 and served on the petitioner on 16.3.2002. Paragraph - 2, 3, 4 and 5 of the grounds of detention, which are relevant are quoted hereunder: "2. That on 5.12.2001 you had lifted 12,000 liters of K. Oil from HPCL Depot, Rourkela. On the same day you had shown issuance of 12,000 ltrs., of K. Oil to one P. K. Biswakarma, Sub-Wholesale Dealer, Sundargarh. Similarly on 7.12.2001 you had lifted 12,000 liters of K. Oil from HPCL and shown it as issued to Md. Nuruddin. Attested copies of the relevant pages of the stock Registers maintained by you and the concerned Sub-Wholesalers is at Annexure 3 to 5. But on verification of stock registers of P. K. Biswakarma, Sub-Wholesale Dealer, Sundargarh and Md. Similarly on 7.12.2001 you had lifted 12,000 liters of K. Oil from HPCL and shown it as issued to Md. Nuruddin. Attested copies of the relevant pages of the stock Registers maintained by you and the concerned Sub-Wholesalers is at Annexure 3 to 5. But on verification of stock registers of P. K. Biswakarma, Sub-Wholesale Dealer, Sundargarh and Md. Nuruddin, Sub-Wholesale Dealer, Balisankara by the CSO, Sundargarh and Executive Magistrate & Tahasildar, Sundargarh it was found that no stock of K. Oil was received by them corresponding to the above stock issue-entries made by you which reveals that the entire 24,000 liters of K. Oil has been black marketed by you for your personal gain. The concerned Sub-Wholesale Dealers have also denied receipt of the above quantity of K. Oil from you. The copies of Statements given by Pradeep Ku. Biswarkarma, K. Oil Sub-Whole dealer, Sundargarh and Md. Nuruddin, K. Oil Sub-Whole Dealer, Balishankara before the Executive Magistrate & Tahasildar, Sundargarh alongwith the copies of Statements given by the Marketing Inspector, Sundargarh & Balishankara and enquiry report of Tahasildar & Executive Magistrate, Sundargarh and CSO, Sundargarh are appended at Annexure - 6 to 10. 3. While verifying the stock register maintained by you in the name of M/s. Harduttral Ranglal, Kerosene Oil Wholesale Dealer, Biramitrapur by the CSO, Sundargarh and Executive Magistrate & Tahasildar, Sundargarh it was found that 12,000 Itrs., of K. Oil lifted vide invoice No. 10242 dated 11.12.2001 has not been accounted for in your stock register. On 24.12.2001 the stock was physically verified by the Marketing Inspector, Enforcement Squad, Panposh accompanying by Marketing Inspector, Biramitrapur and found that 900 litres of K. Oil was available with you. (Seizure list enclosed at Annexure-11). You had completed your lifting of K. Oil for the month of December, 2001 by 21.12.2001. However, on enquiry at Sub-Wholesale Points at Sadar Block, Balisankara Block and Bargaon Block it was found that you had issued 12,000 liters of K. Oil to P. K. Biswakarma, Sub-Wholesale Dealer, Sundargarh vide Challan No. 203 dtd. 27.12.2001, 12,000 Itrs. of K. Oil to Shri M/s. J. S. N. Traders, Sub-Wholesaler Dealer, Bargaon (Prop. (Shyamlal Agarwal) vide Challan No. 204 dated 31.12.2001 and 12,000 liters of K. Oil to Md. Nuruddin, Sub-Wholesale Dealer, Balisankara Block vide Challan No. 205 dated 31.12.2001. (Copies of Challans enclosed at Annexure -12 to 14). 27.12.2001, 12,000 Itrs. of K. Oil to Shri M/s. J. S. N. Traders, Sub-Wholesaler Dealer, Bargaon (Prop. (Shyamlal Agarwal) vide Challan No. 204 dated 31.12.2001 and 12,000 liters of K. Oil to Md. Nuruddin, Sub-Wholesale Dealer, Balisankara Block vide Challan No. 205 dated 31.12.2001. (Copies of Challans enclosed at Annexure -12 to 14). It was found that you had shown all the stock exhausted by 24.12.2001 excepting 900 Itrs. of K. Oil. So how could you were able to issue 36,000 Itrs. of K. Oil after 24.12.2001 to above K. Oil sub-Wholesale Dealers ? It is clearly evident that you had black marketed 36,000 Itrs. of K. Oil and thereby caused stoppage of supply of K. Oil to poor consumers to which they are entitled. Hence the public distribution system of essential commodities has been disrupted. Only after enquiries and raids were conducted by the administration you arranged 36,000 Itrs. of K. Oil from illegal sources, known to you to supply the same to the three Sub-Wholesalers mentioned earlier. Also it is evident that you are involved in a racket of black-marketing and arranging K. Oil from other sources as and when required. 4. That as per the aforementioned paragraphs, I am satisfied that you being a lawful care-taker of the aforesaid essential commodity as a K. Oil wholesale dealer, have acted in a manner prejudicial to the maintenance of supplies of commodities essential to the community, punishable u/s 7 of the Essential Commodities Act, 1955 and it is felt necessary to prevent you from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. 5. Due to your aforesaid activities, I reached at the conclusion that you have been indulging in illegal transaction of Kerosene Oil since long. Hence your activities are detrimental to the interest of the State and general public and if you are not immediately prevented by way of detention, there is every likely-hood that you will continue with the said illegal practice with connivance of any other licensees. Hence this detention offer." The order of detention was thereafter approved by the State Government on 20.3.2002. The petitioner submitted his written representation dated 22.3.2002 against the order of detention to the State Government through the District Magistrate, Sundargarh and the State Government received the said representation on 26.3.2002 and rejected the same on 6.4.2002. Hence this detention offer." The order of detention was thereafter approved by the State Government on 20.3.2002. The petitioner submitted his written representation dated 22.3.2002 against the order of detention to the State Government through the District Magistrate, Sundargarh and the State Government received the said representation on 26.3.2002 and rejected the same on 6.4.2002. The petitioner also made a representation dated 27.3.2002 against the order of detention to the Central Government which was received by the Food Supplies and Consumer Welfare Department, Government of Orissa on 30.3.2002 and sent to the Government of India and the said representation was rejected by the Government of India on 8.4.2002. The representation of the petitioner was referred to the Advisory Board constituted under the Act on 21.3.2002 and the Advisory Board submitted its report on 23.4.2002, The State Government passed an order on 3.5,2002 confirming the detention of the petitioner. 3. Though a counter affidavit has been filed by the District Magistrate, Sundargarh (Opp. party No. 2), who passed the order of detention justifying the order of detention, no counter affidavit has been filed by the State Government (Opp. party No. 1} 4. Mr. S.C. Lal, learned counsel for the petitioner submitted that it is clear from the grounds of detention that the petitioner has been detained on the allegation that the firm of which the petitioner is a partner had lifted 1,20,000 litres of Kerosene Oil from M/s. Hindusthan Petroleum Corporation in ten tank lorries and sold some quantity of the said Kerosene Oil in the black market during December, 2001. He submitted that on 24.12,2001, the Marketing Inspector, Enforcement Squad, Panposh accompanied by the Marketing Inspector, Biramitrapur, physically verified the stock of Kerosene Oil in the business premises of the petitioner's firm and effected seizure of 900 litres of Kerosene oil in five barrels, one cash memo book, the stock register and the purchase invoices issued by the Hindusthan Petroleum Corporation Limited. Thereafter, on 25.1.2001, the Marketing Inspector submitted a prosecution report under Sections 7 and 9 of the Essential Commodities Act, to the District Magistrate, Sundargarh and the District Magistrate directed joint verification of the petitioner's firm by the Civil Supplies Officer and the Executive Magistrate. Thereafter, on 25.1.2001, the Marketing Inspector submitted a prosecution report under Sections 7 and 9 of the Essential Commodities Act, to the District Magistrate, Sundargarh and the District Magistrate directed joint verification of the petitioner's firm by the Civil Supplies Officer and the Executive Magistrate. The Civil Supplies Officer and the Executive Magistrate made a joint verification and submitted their report on 12.2.2002, The District Magistrate then issued an order dated 13.2.2002 suspending the wholesale licence of the petitioner's firm and allotted the monthly quota to M/s. Utkal Oil Agency, Rourkela and on 14,2.2002 issued an order sanctioning prosecution of the petitioner and the petitioner's firm u/s 7 of the Essential Commodities Act, 1955 for alleged contravention of various clauses of the conditions of licence granted in favour of the petitioner's firm and Clause-3 of the Orissa Kerosene Control Order, 1962. Pursuant to the said sanction order, a prosecution has been instituted. Mr. Lal vehemently submitted that the aforesaid facts would show that after December, 2001 when the petitioner is alleged to have indulged in black marketing of Kerosene Oil, the wholesale licence of the petitioner under the Orissa Kerosene Control Order, 1962 has been suspended and there was no scope for the petitioner to further indulge in black marketing of Kerosene Oil. He argued that no event subsequent to December, 2001 has been referred in the grounds of detention for which detention of the petitioner was necessary. According to Mr. Lal, the order of detention passed on 11.3.2002, i.e., after more than two months from the alleged acts of black marketing of Kerosene Oil on the part of the petitioner, is liable to be quashed on the ground of delay. In support of this contention, Mr. Lal cited the decisions of the Supreme Court in Jagan Nath Biswas Vs. The State of West Bengal, ; Sk. Serajul Vs. State of West Bengal, ; T.A. Abdul Rahaman Vs. State of Kerala and others, and Pradeep Nikanth Paturkar Vs. S. Ramamurthi and others, 5. In reply to the aforesaid submissions of Mr. Lal, Mr. R.N. Acharya, learned Additional Government Advocate relied on the counter affidavit filed by the District Magistrate, Sundargarh (Opp. party No. 2) who had passed the order of detention. State of Kerala and others, and Pradeep Nikanth Paturkar Vs. S. Ramamurthi and others, 5. In reply to the aforesaid submissions of Mr. Lal, Mr. R.N. Acharya, learned Additional Government Advocate relied on the counter affidavit filed by the District Magistrate, Sundargarh (Opp. party No. 2) who had passed the order of detention. In the said counter affidavit, the District Magistrate, Sundargarh, after reiterating the grounds of detention, has indicated as to why, according to him, it was necessary to detain the petitioner even though the acts of black marketing of Kerosene oil by the petitioner were during December, 2001. The relevant portion of the said counter affidavit of the District Magistrate is quoted hereunder: " *** *** *** The petitioner did not supply stock of Kerosene Oil to said three sub-wholesale dealers on the dates shown by him in his stock Register. Instead he supplied 36000 litres Kerosene Oil to said three sub-wholesale dealers on 27.12.2001 and 31.12,2001 through challans only after detection of his illegal activities. Therefore, the ground of detention is not baseless and non-existence. The petitioner could arrange such a huge quantity of Kerosene Oil from illegal source after 24.12.2001 as there was no stock available with him. The District Magistrate is convinced that the petitioner was involved in a racket of black marketing Kerosene Oil and there was every likelihood that the petitioner would have continued with the said illegal practice with connivance of any other licensees. Hence, it was necessary to prevent him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. Therefore the qjder of detention is not an abuse of process of law. *** *** *** 6. In the case of T.A. Abdul Rahman (supra) the Supreme Court after examining at length its earlier decisions on the point as to when an order of detention can be Interfered by the Court on the ground of delay, held as follows : "11. The conspectus of the above decisions can be summarised thus : The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. The conspectus of the above decisions can be summarised thus : The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case. 12. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner." In the aforesaid judgment, the Supreme Court has observed that the question whether the prejudicial activities of the detenu are proximate to the time when the order of detention is made or the live-link between the prejudicial activities of the detenu and the purpose of detention is snapped depends on the facts and circumstances of each case and when there is undue delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily explained such a delay and afforded a tenable and reasonable explanation for such delay and the Court has to investigate whether the causal connection has been broken in the circumstances of each case. In the said decision, the Supreme Court has also held that when there is unsatisfactory and unexplained delay between the date of the order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority with regard to the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner. The aforesaid observations of the Supreme Court in T.A. Abdul Rahman (supra) have been quoted in the case of Pradeep Nilkanth Paturkar v. S. Ramamurthi and Ors. (supra) and it has been held therein that each case is to be decided on the facts and circumstances appearing in that particular case to find out whether the unexplained delay, whether short or long, has vitiated the order of detention. 7. Applying the aforesaid law laid down by the Supreme Court to the facts of the present case, we find that the petitioner has been detained by the impugned order of detention on account of some acts of black marketing of Kerosene Oil during December, 2001 as would be clear from the grounds of detention quoted above. But the order of detention was passed on 11.3.2002 and there is no mention whatsoever in the grounds of detention quoted above that the petitioner indulged in any activity of black marketing of Kerosene Oil during the months of January, February or March, 2002. On the other hand, it appears from Annexur0-5 to the writ petition that the District Magistrate, Sundargarh suspended the licence of the petitioner's firm on 13.2.2002 due to violation of the licensing conditions issued under the Orissa Kerosene Control Order, 1962 till the case of the petitioner was finalised and the monthly quota of 96.0 KL of Kerosene Oil allotted in favour of the petitioner's firm was allotted to M/s. Utkal Oil Agency for supply to the concerned areas. This fact of suspension of the licence of the petitioner's firm by the order dated 13.2.2002 under Annexure-5 to the writ petition though stated in paragraph "X", at page 13 of the writ petition, has not been disputed by the District Magistrate, in his counter affidavit. This fact of suspension of the licence of the petitioner's firm by the order dated 13.2.2002 under Annexure-5 to the writ petition though stated in paragraph "X", at page 13 of the writ petition, has not been disputed by the District Magistrate, in his counter affidavit. After the suspension of the wholesale licence of the petitioner's firm and allotment of the quota of the petitioner's firm to M/s. Utkal Oil Agency, Rourkela, there was hardly and scope for the petitioner to indulge in further black marketing of Kerosene Oil after 13.2.2002. The District Magistrate, however, has stated in his counter affidavit and, in particular, in the portion quoted above that the petitioner could arrange a huge quantity of kerosene oil from illegal source after 24.12.2001 even though there was no stock available with him and from this fact, the District Magistrate was convinced that he (petitioner) was involved in the racket of black marketing of Kerosene Oil and there was every likelihood that the petitioner would have continued with the said illegal practice with connivance of other licensees and to prevent him from doing such acts, the order of detention was passed. But in paragraph-3 of the grounds of detention, the District Magistrate has mentioned the dates on which the aforesaid 36,000 litres of Kerosene oil procured from illegal sources have been sold. He has indicated that vide, challan No. 203 dated 27.12.2001, 12,000 litres of Kerosene Oil were sold by the petitioner's firm to P. K. Biswakarma, Sub-Wholesale Dealer, Sundargarh, vide challan No. 204 dated 31.12.2001, the petitioner's firm has sold 12,000 litres of Kerosene Oil to M/s. J.S.N. Traders, Sub-Wholesale Dealer, Bargaon and vide Challan No, 205 dated 31.12.2001, the petitioner's firm has sold 12,000 litres of Kerosene Oil to Md. Nuruddin, Sub-Wholesale Dealer, Balisankara Block. Thus, 36,000 litres of Kerosene Oil alleged to have been procured by the petitioner's firm from the illegal sources have all been sold in December, 2001. There is no allegation whatsoever in the grounds of detention that after December, 2001, the petitioner's firm has procured Kerosene oil from any source illegally with the connivance of other licensees or acted in contravention of the provisions of the Orissa Kerosene Control Order, 1962 or the terms and conditions of the licence issued in favour of the petitioner's firm under the said control order. For the contravention of the Orissa Kerosene Control order, 1962 and the terms and conditions of the license issued in favour of the petitioner's firm, the wholesale licence of the petitioner's firm has been suspended and further a prosecution has been sanctioned and launched against the petitioner and the petitioner's firm for offences under the Essential Commodities Act, 1955. But in the absence of any other incidents after December, 2001 to show that the petitioner was still indulging in black marketing of Kerosene oil, we have grave doubts about the genuineness of the subjective satisfaction of the District Magistrate, Sundargarh that the detention of the petitioner was necessary on 11.3.2002 when the impugned order of detention was passed purportedly to prevent him from defeating the provisions of the Orissa Kerosene Control Order, 1962 or from acting in any manner prejudicial to the maintenance of supply of essential commodities. 8. Mr. Lal next submitted that although the petitioner's representation dated 22.3.2002 against the order of detention was received by the State Government on 26.3.2002, the State Government rejected the same only on 6.4.2002 and the State Government has not filed any counter affidavit explaining this delay of 12 days in disposing of the representation of the petitioner and on this ground also the continued detention of the petitioner is liable to be quashed. We find full force In the aforesaid submission of Mr. Lal. No counter affidavit has been filed by the State Government to explain this delay of 12 days in disposing of the representation of the petitioner and the Supreme Court has held in several decisions that unexplained delay in disposing of the representation of the detenu affects his constitutional right under Article 22(5) of the Constitution to make a representation against the order of detention and on this ground the continued detention of a detenu is liable to be quashed. In the case of Kundanbhai Dulabhai Shaikh v. Dist. Magistrate, Ahmedebaa end others cited by Mr. In the case of Kundanbhai Dulabhai Shaikh v. Dist. Magistrate, Ahmedebaa end others cited by Mr. Lal, the Supreme Court while quashing the detention order on the ground of such delay in disposing of the representation of the detenu against the order of detention held : "Black-marketing is a social evil, persons found guilty of economic offences have to be dealt with a firm hand, but when it comes to fundamental rights under the Constitution, this Court, irrespective of enormity and gravity of allegations made against the detenu, has to intervene as was indicated in Mahesh Kumar Chauhan's case AIR 1990 SC 1455 (supra) and in an earlier decision in Mahesh Kumar Chauhan alias Banti Vs. Union of India and others, in which it was observed that the gravity of the evil to the community resulting from anti-social activities cannot furnish sufficient reason for invading the personal liberty of a citizen, except in accordance with the procedure established by law particularly as normal penal laws would still be available for being invoked rather than keeping a person in detention without trial." 9. In view of our aforesaid conclusion, it is not necessary for us to deal with the contention of Mr. Lal, learned counsel for the petitioner that the continued detention of the petitioner is also liable to be quashed on the ground that the petitioner has not been furnished with copies of cash memos dated 5.12.2001 and 7.12.2001 under which the petitioner's firm supplied 24,000 litres of Kerosene Oil to Sub-Wholesale Dealers, namely, P.K, Biswakarma and Md. Nuruddin respectively, as a result of which, the petitioner was not in a position to effectively make a representation against the order of detention. 10. For the aforesaid reasons, the impugned order of detention dated 11.3.2002 (Annexure-1) passed by the District Magistrate, Sundargarh and the impugned order dated 20.3.2002 (Annexure-3) of the State Government approving the said order of detention are quashed. The petltloner-Pankaj Kumar Trlbrewal be released forthwith unless his detention is wanted in connection with some other cases. The writ petition is allowed but there shall be no order as to costs. M. Papanna, J. 11. I agree. Final Result : Allowed