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Gujarat High Court · body

2006 DIGILAW 175 (GUJ)

NARSINHBHAI RAMABHAI CHAVADA v. STATE OF GUJARAT

2006-03-06

K.M.MEHTA

body2006
( 1 ) NARSINHBHAI Ramabhai Chavada, petitioner, has filed this habeas corpus petition challenging the order of detention dated 17. 10. 2005 passed by the District magistrate, Kheda-Nadiad, respondent No. 2 under the provisions of the Gujarat Prevention of Anti Social activities Act, 1985 (hereinafter referred to as "the pasa Act") as being illegal, invalid, arbitrary and contrary to Articles 14, 19, 21 and 22 of the constitution of India. The petition was filed on 16. 11. 2005. On 18. 11. 2005 this Court issued Rule returnable on 14. 12. 2005. On behalf of the respondents mr. L. R. Pujari, learned AGP, appears. With the consent of the parties, the matter has been taken up for final disposal. ( 2 ) MR. H. R. Prajapati, learned advocate for the petitioner has invited my attention to the order of detention dated 17. 10. 2005 passed under the provisions of the PASA Act which is produced at Annexure-A to the petition. He has also invited my attention to the other order passed on the same day by which the petitioner has been sent to Rajkot jail. He has also invited my attention to the order dated 17. 10. 2005 by which the authority has supplied the grounds of detention. In the grounds of detention there are about 4 criminal offences registered in connection with storing of a large quantity of foreign liquors. In the first offence took place on 27. 5. 2005 it was alleged that the petitioner brought 106 bottles of liquor worth Rs. 24,750/ -. Another offence was committed on 5. 11. 2004 where also 106 bottles of foreign liquor worth Rs. 22,200/- was seized. The other offence is of 1. 9. 2003 where the petitioner has stored 89 bottles of foreign liquor valued at Rs. 26,700/ -. The fourth incident is of 29. 12. 2003 where about 45 bottles of foreign liquor worth Rs. 18,000/- and other materials were seized. ( 3 ) THE learned advocate has invited my attention to the fact that in the grounds of detention it has been alleged that the senior police officer Mr. N. D. Solanki had received information on 27. 5. 2005 that the petitioner is carrying on business of foreign liquor. In view of the said information Mr. Solanki along with other police staff and panchas went by government car and raided the premises in question. N. D. Solanki had received information on 27. 5. 2005 that the petitioner is carrying on business of foreign liquor. In view of the said information Mr. Solanki along with other police staff and panchas went by government car and raided the premises in question. At that time one Sanjaybhai budabhai Parmar was arrested and the police found out 24 bottles of foreign liquor and another 82 bottles of foreign liquor in all 106 bottles of foreign liquors were found out from the same place. Panchnama was prepared. It was also recorded that the petitioner has also confessed in his statement on 14. 3. 2005 that there were some foreign liquor bottles found out at his place on 11. 7. 2005 about 106 bottles and for which he has filed bail application and he has been released on bail. Similarly, another incident of 5. 11. 2004 was also alleged similar incident. The third incident is of 1. 9. 2003 and the fourth incident regarding 29. 12. 2003 where it was stated that the petitioner was carrying on liquor business. It was alleged that carrying on business of country liquor is injurious to health and as the petitioner is carrying on business of boot-legging he is a boot-legger as defined under the provisions of Section 2 (b) of the PASA Act and after examining all these facts, the authorities have considered that the carrying on of business of liquor by the petitioner will affect the public law as well as public health and therefore on arriving at subjective satisfaction the authority has passed the order of detention. ( 4 ) THE learned advocate for the petitioner has stated that as per the contention of the petitioner the statement recorded by the police staff and statement of some of the panchas on which the authorities are relying on particularly statement recorded under Section 161 of the Code of Criminal Procedure and other materials were not supplied to the petitioner. ( 5 ) IN view of the aforesaid facts, the petitioner addressed a letter dated 29. 10. 2005 to the District magistrate, Kheda-Nadiad in which it was stated through the advocate of the petitioner that the petitioner has not been supplied with the further statements particularly statement recorded under Section 161 of the code of Criminal Procedure. ( 5 ) IN view of the aforesaid facts, the petitioner addressed a letter dated 29. 10. 2005 to the District magistrate, Kheda-Nadiad in which it was stated through the advocate of the petitioner that the petitioner has not been supplied with the further statements particularly statement recorded under Section 161 of the code of Criminal Procedure. It was stated that copy of statements recorded under Section 161 of the Code of criminal Procedure of Police Sub-Inspector S. A. Malek, asi Alkhaji Ditaji, P. C. Khumansinh Tersinh, Ramabhai mohanbhai Parmar, Budhabhai Dahyabhai Parmar, Vinubhai dahyabhai Parmar, Sanjay Budhabhai Parmar, Dhanjibhai kishabhai, Thakorbhai Ramabhai Chavada and others which were recorded have not been supplied to the petitioner. Further copy of statement recorded under Section 161 of code of Criminal Procedure of H. C. Jashbhai Mohanbhai, statements of other staff members and other police investigation papers with respect to C. R. No. 342 of 2004 were not supplied to the petitioner. It was also stated that copy of statements recorded under Section 161 of the code of criminal Procedure, copy of panchnama made in presence of Sureshbhai Veljibhai Patani and Pravinkumar chimanlal Dave, copy of grounds of detention of co-accused Rajendra @ Bhano Navnitlal Jaswal with respect to c. R. No. 2000 of 2003 were not given. The petitioner has also stated that some of the documents supplied to the petitioner were illegible, namely, pages 69 and 113 and legible copies of the same may be given to the petitioner. ( 6 ) THE authority has given reply to the said letter on 10. 11. 2005 to the advocate of the petitioner in which the authority has stated that all the documents which have been demanded by the petitioner are not relevant. However, the authority supplied some of the statements recorded by Chaklasi Police Station in respect of Crime register No. 128 of 2005. Copies of reply of Khumansinh tersinh, Budhabhai Dahyabhai Parmar, Sanjaybhai Budhabhai parmar and Dhanji Kishabhai Parmar were given. As regards crime Register No. 342 of 2004 of Chaklasi Police station, statement of Jashbhai Mohanbhai was given. ( 7 ) AS regards Crime Case No. 2000 of 2003, copy of panchnama and copy of statement of Rajedra @ Bhano navnitlal Jaswal were sent. As regards prohibition Case no. 2287 of 2003 statement of Mahendrabhai Ravjibhai and arjunbhai Jasubhai were supplied to the petitioner. ( 7 ) AS regards Crime Case No. 2000 of 2003, copy of panchnama and copy of statement of Rajedra @ Bhano navnitlal Jaswal were sent. As regards prohibition Case no. 2287 of 2003 statement of Mahendrabhai Ravjibhai and arjunbhai Jasubhai were supplied to the petitioner. ( 8 ) IN view of the aforesaid facts and circumstances of the case, Mr. Prajapati, learned advocate for the petitioner has challenged the order of detention on the following grounds: ( 9 ) THAT the documents for which the petitioner has demanded particularly statement recorded under Section 161 of the Code of Criminal Procedure which have bearing on the aspect of detention of the petitioner are not placed before the detaining authority by the sponsoring authority and if placed the same have not been supplied to the petitioner and therefore the order of detention is required to be quashed and set aside. (1) It was further submitted that the detaining authority has subsequently supplied with the documents demanded in the representation through the sponsoring authority by its letter dated 10. 11. 2005 and due to this the petitioner could not make an effective representation as the earliest as guaranteed under Article 22 (5) of the constitution of India. Therefore, the continued detention of the petitioner has become bad in law. (2)It was further stated that the authority has relied on four offences registered under the Prohibition Act and therefore there is no question of disturbance to public health and public order and the subjective satisfaction of the detaining authority for passing the detention order gets vitiated. (3) It was further submitted that there is a gross delay of five months in passing the order of detention and therefore the detention order is required to be quashed and set aside. (4) It was further submitted that the copy of panchnama which is at page No. 101 is not supplied as copy which is supplied on page No. 85 where address is not tallying with the address given at page No. 101 and also they were illegible. Copies of page Nos. 69 and 113 were also not legible. Therefore, illegible copies of documents were supplied to the petitioner and hence the order of detention is violative of Article 22 (5) of the constitution of India. Copies of page Nos. 69 and 113 were also not legible. Therefore, illegible copies of documents were supplied to the petitioner and hence the order of detention is violative of Article 22 (5) of the constitution of India. (5) Though number of grounds have been raised by the petitioner, the petitioner submitted that for assailing the aforesaid order he is confining his argument in the present petition on the first ground. As regards first ground the petitioner has made elaborate contention as follows: ( 10 ) HOWEVER, for appreciating the said contention first I refer to Section 161 of the Code of Criminal Procedure which provides examination of witness by police which reads as under: (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstanes of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. (1) After relying on the said statement the learned advocate for the petitioner has stated that the statements recorded under Section 161 of the Code of criminal Procedure, as far as criminal trial is concerned, cannot be used for any purpose except to contradict a witness in the manner prescribed under proviso to Section 162 (1) of the Code of Criminal procedure. However, as regards detention matter he has made the following submissions. (2) The detaining authority has failed to supply statements recorded under Section 161 of the Code of criminal Procedure in connection with prohibition offences considered by the detaining authority. The detaining authority has specifically referred to and relied on the grounds of detention about the same. A specific demand was made by making representation dated 29. 10. 2005. (2) The detaining authority has failed to supply statements recorded under Section 161 of the Code of criminal Procedure in connection with prohibition offences considered by the detaining authority. The detaining authority has specifically referred to and relied on the grounds of detention about the same. A specific demand was made by making representation dated 29. 10. 2005. The detaining authority in its reply dated 17. 1. 2006 has stated in para 8 that all relevant documents which have been referred to and relied upon by him for passing the order of detention have been supplied to the detenu along with grounds of detention. It was further stated that the petitioner has demanded certain documents, copies of which have been supplied to him on 10. 11. 2005. WHETHER STATEMENTS RECORDED UNDER SECTION 161 OF THE CODE of CRIMINAL PROCEDURE ARE RELEVANT" "the learned advocate for the petitioner has stated that the statements recorded under Section 161 of the code of Criminal Procedure are vital, relevant and important documents and non-supply of the same along with the grounds of detention the petitioner has been deprived of his legitimate right of making effective representation under Article 22 (5) of the Constitution of india and his right of making effective representation under Section 9 (1) of the PASA Act is also violated. As regards the first submission regarding non-supply of statements recorded under Section 161 of the Code of criminal Procedure which are relevant and material, the learned counsel for the petitioner has relied on the division Bench judgement of this Court in the case of jeeva VEIYAPURI MADRASI VS. COMMISSIONER OF POLICE, ahmedabad reported in 1991 (1) GLH 346 particularly paragraph 12 on page 352 where the Division Bench has observed as under: "it was therefore incumbent upon him to consider the statements recorded under Section 161 by the police during the investigation of the offences for which the charge-sheets were already placed before him. In absence of the said statements recorded under Section 161 the satisfaction arrived at by the detaining authority is impaired and is vitiated and therefore the whole order of detention is vitiated. " (4) The learned advocate for the petitioner has relied on unreported judgement of the Division Bench of this court in the case of ILMUDDIN SHAIKH MOHMAD SHAIKH VS. STATE OF GUJARAT and ORS. " (4) The learned advocate for the petitioner has relied on unreported judgement of the Division Bench of this court in the case of ILMUDDIN SHAIKH MOHMAD SHAIKH VS. STATE OF GUJARAT and ORS. 1993 (2) G. L. H. (U. J. 18) page 35 particularly on page 37 where the Division Bench has observed as follows. The Division Bench of this Court has relied on the earlier decision of this Court in the case of JEEVA VEIYAPURI MADRASI VS. COMMISSIONER OF POLICE (supra) which I have referred to earlier. In the instant case it is an undisputed position that the detaining authority has not taken into consideration the statement recorded under Section 161 of Cr. P. C. in respect of the three criminal cases which have been relied upon against the detenu. At any rate it is evident the copies of these statements have not been supplied to the detenu. Therefore, the detenu would be entitled to be released either on the ground that the satisfaction arrived at by the detaining authority cannot be said to be genuine as the detaining authority has failed to take into consideration the statements recorded under section 161 of Cr. P. C. , in the aforesaid three cases, or on the ground that the relevant material has not been supplied to the detenu and therefore he has been deprived of his legitimate right of making effective representation against the detention as provided under Article 22 (5) of the Constitution of India and also as provided under Section 9 (1) of the Act. In the instant case we are of the opinion that the satisfaction arrived at by the detaining authority stands vitiated inasmuch as the detaining authority has not taken into consideration the statements recorded under Section 161 of the Cr. P. C. , by the Investigation Officer in all the three criminal cases which have been relied upon by the detaining authority. " (5) After relying on these two decisions the learned advocate for the petitioner has submitted that the statement recorded under Section 161 of the Cr. P. C. , is a relevant material which has got to be taken into consideration by the detaining authority before arriving at the subjective satisfaction. " (5) After relying on these two decisions the learned advocate for the petitioner has submitted that the statement recorded under Section 161 of the Cr. P. C. , is a relevant material which has got to be taken into consideration by the detaining authority before arriving at the subjective satisfaction. In view of the aforesaid two decisions, the learned advocate for the petitioner has submitted that it is the bounden duty of the detaining authority to consider the statement recorded under Section 161 of the Cr. P. C. and the detaining authority cannot say that they are not relevant. Relying on the aforesaid two decisions of the Division Bench, the learned advocate for the petitioner submitted that detenu would be entitled to be released either on the ground that the satisfaction arrived at by the detaining authority cannot be said to be genuine as the detaining authority has failed to take into consideration the statements recorded under Section 161 of the Cr. P. C. Or on the ground that the relevant material has not been supplied to the detenu and therefore his right of making effective representation has been deprived of. (6) The learned advocate for the petitioner has submitted that in the present case the statements recorded under Section 161 of the Cr. P. C. were demanded by the petitioner by making the representation dated 29. 10. 2005 to the detaining authority. The detaining authority has belatedly supplied the same video its communication dated 10. 11. 2005 and thus the same came to be supplied after about 24 days from the date of detention for which there is no cogent and convincing explanation or reply filed by the authority as to why there is a delay in supplying those documents. The learned advocate for the petitioner therefore submitted that delay in supplying those documents would vitiate the further detention of the petitioner and for that purpose the learned advocate for the petitioner has relied upon the unreported decision of this Court in the case of munno @ SARJAHA DACHUBHAI MARVADI VS. STATE OF GUJARAT in special Civil Application No. 1046 of 1996 delivered by this Court (Cram: S. M. Soni, J) on 18. 3. STATE OF GUJARAT in special Civil Application No. 1046 of 1996 delivered by this Court (Cram: S. M. Soni, J) on 18. 3. 1996 wherein this court has held that the documents relied on by the detaining authority are required to be supplied to the detenu along with the grounds of detention itself and in any case not later than seven days of service of order. It is further held that initial non-supply of documents, even if supplied after seven days, delays the right to make an effective representation. When a representation is required to be decided without unreasonable delay, any act on the part of the detaining authority which delays the exercise of right to make representation amounts to delay in deciding the representation. (6a) The learned advocate for the petitioner has submitted that once statements recorded under Section 161 of the Code of Criminal Procedure are relevant and if the same are not supplied along with grounds of detention then it is the duty of the detaining authority to supply the same along with grounds of details and if they fail to supply the same, then the constitutional right of the petitioner to make an effective representation under article 22 (5) of the Constitution of India along with the statutory right under Section 9 of the PASA Act is violated. (7) In support of the aforesaid submission, the learned advocate for the petitioner has relied on the judgement of the Hon ble Supreme Court in the case of MOHD. ZAKIR vs. DELHI ADMINISTRATION reported in AIR 1982 SC 696 wherein the Hon ble Apex Court after relying on its earlier decisions, has observed in para 2 as under: "in the view that we have taken in a number of decisions starting from Smt. Icchu Devi choraria s case (1980) 4 SCC 531 : ( AIR 1980 SC 1983 ) to the case of Kamlal Kanahiylal khushalani W. P. No. 5873 of 1980 decided on Jan. 6, 1981 (reported in AIR 1981 SC 814 ), it is manifest that the question of demanding the documents is wholly irrelevant because it is the constitutional mandate which requires the detaining authority to give the documents relied on referred to in the order of detention pari passu the grounds of detention in order that the detenu may make an effective representation immediately instead of waiting for the documents to be supplied with. " (8) The learned counsel for the petitioner has relied on the judgement of the Constitution Bench in the case MOHD. SHAKEEL WAHID AHMED VS. STATE OF MAHARASHTRA reported in (1983) 2 SCC 392 . In that case the Hon ble Apex Court has observed that non-placement of the opinion which came into existence after signing of the detention order before the detaining authority was held to vitiate the detention. (9) The learned counsel for the petitioner has further relied on the Constitution Bench judgement of the Hon ble supreme Court in the case of AHAMED NASSAR VS. STATE OF t. N. reported in (1999) 8 SCC 473 particularly para 20 on page 485 of the judgement. The learned advocate for the petitioner has further relied on the judgement of the hon ble Supreme Court in the case of ABDUL SATHAR IBRAHIM manik VS. UNION OF INDIA reported in AIR 1991 SC 2261 particularly para 12 sub-paras 5 and 6 on page 2271 of the said judgement where the Hon ble Apex Court after relying on its earlier judgements, has observed as under: " (6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu. " (10) The learned advocate for the petitioner has also relied on the latest judgement of the Hon ble Supreme court in the case of K. S. NAGAMUTHU VS. STATE OF TAMIL nadu reported in 2005 AIR SCW 6124 where on page 6126 in para 10 the Hon ble Apex Court has observed as under: "there is no reason why it should not have been placed before the detaining authority for his consideration. It has not been disputed that the said letter of retraction contained relevant material, which ought to have been considered by the detaining authority before passing an order of detention. Since relevant material was withheld from the detaining authority, the order of detention must be struck down as being illegal. We accordingly, quash the order of detention. " ( 11 ) ON behalf of the respondents Mr. Since relevant material was withheld from the detaining authority, the order of detention must be struck down as being illegal. We accordingly, quash the order of detention. " ( 11 ) ON behalf of the respondents Mr. L. R. Pujari, learned agp, has appeared. He has tried to rely on the order of detention as well as the affidavit of R. R. Varsani, district Magistrate, Dist. Kheda at Nadiad dated 17. 1. 2006. In the affidavit it has been stated that all relevant and vital materials which have a bearing on the aspect of the matter were placed before the authority by the sponsoring authority and the copies of all those documents which have been referred to and relied upon by the authority for passing the order of detention against the detenu have been supplied to the detenu along with the grounds of detention. The learned A. G. P. has relied on the judgement of the Hon ble Supreme Court in the case of ABDUL SATHAR IBRAHIM MANIK VS. UNION OF INDIA AND others reported in AIR 1991 SC 2261 which has also been relied on by the learned advocate for the petitioner but the learned AGP has relied on sub-para 5 of para 12 on pages 2270-2271. " (5) When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation. Only when the detaining authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount to violation of Article 22 (5) of the Constitution of India. Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court. "conclusion AND FINDINGS: ( 12 ) I have considered the facts and circumstances of the case. I have also considered the first contention of the petitioner. "conclusion AND FINDINGS: ( 12 ) I have considered the facts and circumstances of the case. I have also considered the first contention of the petitioner. From the grounds of detention, it appears that the Police Inspector, Chaklasi Police Station, has, after receiving information that the petitioner is carrying on business of foreign liquor, along with some police and staff, panchas, gone to the place and raided the premises of the petitioner. From the said ground it appears that the authority has relied on the statement of panch Sanjay Udhabhai Parmar as well as some of the officers of the staff. It is no doubt true that some of the statement of staff have been given by the authority to the detenu. It is the case of the petitioner that whatever statements recorded under Section 161 of the criminal Procedure Code have to be given to the petitioner. Whether the statement recorded under Section 161 of the Cr. P. C. is relevant or vital, the same is not the controversy in view of the two Division Bench judgements of this Court JEEVA VEIYAPURI MADRASI VS. COMMISSIONER OF POLICE (supra) and ILMUDDIN SHAIKH MOHMAD shaikh VS. STATE OF GUJARAT (supra), I am of the view that statements recorded under Section 161 of the cr. P. C. , were relevant and vital documents. (1) If the said statements were recorded and the facts establish that these statements were not supplied to the petitioner and they were subsequently supplied to the petitioner when the petitioner made representation. In view of the Division Bench judgement of this Court the statements recorded under Section 161 of the Cr. P. C. are relevant material and therefore all those documents which are relevant, the detaining authority has to necessarily rely upon them as that would be a vital materials for ordering detention order and in such a case, the statements recorded under Section 161 of the Cr. P. C. , should necessarily be placed before the detaining authority and the copies should also be supplied to the detenu. As the detaining authority has failed to consider those statements and also failed to supply the same to the petitioner along with the grounds and supplying the same after demand which is held wholly irrelevant as held by the Hon ble Supreme Court, the order of detention is required to be quashed and set aside. As the detaining authority has failed to consider those statements and also failed to supply the same to the petitioner along with the grounds and supplying the same after demand which is held wholly irrelevant as held by the Hon ble Supreme Court, the order of detention is required to be quashed and set aside. In my view non-consideration of the statements which are held to be vital and relevant would vitiate the subjective satisfaction of the detaining authority and non-supply of copies of the documents pari passu the oder of detention would amount to violation of Article 22 (5) of the constitution. "if a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material; but the facts of the case the omission to consider the material assumes materiality". (Re: AYYA @ AYUB Vs. State of U. P. and Another reported (1989) 1 SCC 374 para 28 on page 385) (2) The view which I have taken is supported by the judgement of this Court in the case of MUKESH KANAIYALAL luha SINDHI VS. DISTRICT MAGISTRATE, PANCHMAHALS and ORS. , reported in 1999 (2) GLH 348 particularly para 4 on page 349. (3) The view which I have taken is also supported by the judgement of this Court in the case of BABULAL VS. STATE reported in 1986 (1) GLR 704 particularly paragraph 6 on pages 708-710. (3a) If the statements recorded under Section 161 of the cr. P. C. are not supplied to the petitioner along with grounds of detention and if the petitioner further demands the same, then the authority must supply the same within seven days. If there is delay, in the present case it has been supplied after 21 days, then even the supply of the said statement after unexplained and unreasonable delay is bad in law in view of the judgement of this court in the case of Munno @ Sarjaha Dachubhai Marvadi vs. State of Gujarat in Special Civil Application 1046 of 1996 (Coram: S. M. Soni, J) delivered on 18. 3. 3. 1996 wherein this Court has held that if the material and documents are to be supplied, they must be supplied within the statutory period of seven days from the date of detention and not later than. (3b) As regards personal liberty, the following paragraphs are worth noted: "then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the Court will not allow the imprisonment to continue. " (see: Thomas Pelham Dales case (1881) 6 QBD 376, 461)IN view of the above, the petition is allowed. The order of detention dated 17. 10. 2005 passed by the detaining authority, namely, District Magistrate, Kheda-Nadiad, under the provisions of PASA Act is quashed and set aside. The petitioner-detenu Narsinhbhai Ramabhai chavada is ordered to be set at liberty forthwith if he is not required in any other matter. Rule is made absolute to the aforesaid extent. No order as to costs.