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Madhya Pradesh High Court · body

2011 DIGILAW 1017 (MP)

Gyanesh Sharma v. State Of M. P.

2011-08-29

K.K.TRIVEDI, S.HARKAULI

body2011
Judgment K.K. TRIVEDI, J. ( 1. ) BY this petition under Article 226 of the Constitution of India, the petitioner has called in question the orders dated 13-10-2009 and 24-10-2009 said to be issued under the provisions of National Security Act, 1980 (hereinafter referred to as the 'Act' for brevity), detaining the petitioner under section 3(2) of the aforesaid Act, on the ground that no such grounds were available for detention of the petitioner. The orders passed by the respondents are beyond the jurisdiction of the authorities as the said detention order could not have been passed under the said Act. The petitioner has challenged the validity of the detention order mainly on three grounds. Firstly, that there was no sufficient material available with the competent authority to pass such an order on its subjective satisfaction as the material was not indicative of any offence or a threat to the National Security and, therefore, the order could not have been passed by the authorities. Secondly, such an order could not have been issued in exercise of power, in view of the explanation to sub-section (2) of section 3 of the Act and thirdly, the material facts which were required to be placed before the competent authority for reaching to a subjective satisfaction were concealed or withheld illegally by the authority. ( 2. ) BRIEFLY facts giving rise to this petition are that the petitioner is said to be the owner of the land, the premises which was let out to one M/s Hind Dairy Food Products at B-58, Industrial Area Maharajpura, District Gwalior. The petitioner was involved in dealing with the business of Real Estate, under the name and style of Aditya Akshar Infrastructure Pvt. Ltd. and, has nothing to do with M/s Hind Dairy Food Products. Yet the respondent No. 2 on being informed about conducting a search, in the stores of said M/s Hind Dairy Food Products, reached to the conclusion that a huge quantity of adulterated 'Ghee' was seized and found in the stores of said M/s Hind Dairy Food Products, and that the petitioner has also committed offence and that a case was made out to issue a detention order against the petitioner under the Act. It is the case of the petitioner that on coming into know about these facts, he made a representation pointing out all the above facts. It is the case of the petitioner that on coming into know about these facts, he made a representation pointing out all the above facts. Yet the order impugned at Annx.P/2 was passed, communicated to the authorities and, the respondent No. 1 thereafter passed the impugned order of detention at Annx.P/1. Therefore, the petitioner was required to knock the doors of this Court by way of filing this writ petition. It is the case of the petitioner that firstly the petitioner was not involved in the business of aforesaid M/s Hind Dairy Food Products, was nothing to do with the activities of his tenant; secondly, the petitioner was not to be prosecuted at all for any such offence and, thirdly the sample of alleged adulterated 'Ghee' sent for analysis was found to be positive and no adulteration was found in it. It is further contended by the petitioner that on two occasions, he was convicted, but in appeal such convictions were set aside and these facts were well within the knowledge of the proposing/prosecuting authorities, but the said information was withheld and, therefore, the order of detention could not have been passed against him. Learned Senior counsel for the petitioner drawing attention of this Court to the decision of Apex Court in the case of Additional Secretary, Government of India vs. Alka Subhash Gadia, 1992 Suppl. (I) SCC 496 has contended that even before pre-detention, the order of preventive detention can be challenged and the validity of such an order can be examined in exercise of power of judicial review by this Court under Article 226 of the Constitution of India. Paragraph 30 of the aforesaid decision being relevant is reproduced thus :- "30. As regards his last contention, viz, that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Article 22 thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the Courts. To accept Shri Jain's present contention would mean that the courts should disregard all these time- honoured and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question." ( 3. ) IT is contended by learned Senior counsel that apart from five grounds as have been pointed out by the Apex Court in the aforesaid decision, there is further enlargement of the grounds though it is said that the grounds referred to in the decision of Alka Subhash Gadia (supra) are not conclusive and are not exemplary only but in the case of Deepak Bajaj vs. State of Maharashtra and others, AIR 2009 SC 628 , the Apex Court has further said that if there is suppression of material facts before the authorities passing the order of detention, the power of judicial review can be exercised. The relevant portion of the decision of the Apex Court from paragraphs 34 to 39 are reproduced :- "34. Several submissions have been made by Shri Soli Sorabjee, learned counsel for the petitioner, but in our opinion it is not necessary to go into all of them since we are inclined to allow this petition on one of these grounds namely, that the relevant material was not placed before the Detaining Authority when he passed the detention order. 35. Several submissions have been made by Shri Soli Sorabjee, learned counsel for the petitioner, but in our opinion it is not necessary to go into all of them since we are inclined to allow this petition on one of these grounds namely, that the relevant material was not placed before the Detaining Authority when he passed the detention order. 35. These relevant materials have been stated in the writ petition in ground 'C entitled 'Non-placement of relevant material documents by Sponsoring Authority leading to consequent non-consideration thereof by the Detaining Authority. 36. A large number of documents have been referred therein, but we agree with Mr. Shekhar Nafade, learned counsel for the respondent that it is not necessary for the Detaining Authority to consider or refer to the materials which were irrelevant to the activities mentioned in section 3(1) of the Act. However, we agree with Shri Soli Sorabjee that some of the materials were relevant and should have been placed before the Detaining Authority and considered by him, but they were neither placed before the Detaining Authority nor were they considered. 37. The most important of these documents which were not placed before the Detaining Authority were the retractions given by Kuresh Rajkotwala to the DRI dated 4-12-2006. Kuresh Rajkotwala's affidavit filed before the learned Addl. Chief Metropolitan Magistrate, Esplanade, Mumbai. Bharat Chavhan's retraction to DRI dated 9-5-2008, Bipin Thaker's retraction to DRI dated 19-1-2008, Sharad Bhoite's retraction dated 24-4-2007 before the Addl. Chief Metropolitan Magistrate, Esplanade Mumbai and its affidavit filed before the same authority etc. 38. Shri Nafade, learned counsel submitted that these retractions were made before the DRI and the Additional Chief Metropolitan Magistrate, and not before the Sponsoring Authority who was the Additional Director of Revenue Intelligence. Shri Nafade submitted that the Sponsoring Authority was not aware of these retractions and hence he could not have placed them before the Detaining Authority. We find no merit in this submission. 39. Most of the retractions were made to the DRI, and he belongs to the same department as the Sponsoring Authority, who is the Additional Director, Revenue Intelligence. Hence, it was the duty of the DRI to have communicated these retractions of the alleged witnesses to the Sponsoring Authority, as well as the Detaining Authority. There is no dispute that these retractions were indeed made by persons who were earlier said to have made confessions. Hence, it was the duty of the DRI to have communicated these retractions of the alleged witnesses to the Sponsoring Authority, as well as the Detaining Authority. There is no dispute that these retractions were indeed made by persons who were earlier said to have made confessions. These confessions were taken into consideration by the Detaining Authority when he passed the detention order. Had the retractions of the persons who made these confessions also been placed before the Detaining Authority it is possible that the Detaining Authority may not have passed the impugned detention order. Hence, in our opinion, the retractions of the confessions should certainly have been placed before the Detaining Authority, and failure to place them before him, in our opinion, vitiates the detention order." ( 4. ) LEARNED senior counsel for the petitioner further relied on the decision of Apex Court in the case of Ashadevi wife of Gopal Ghermal Mehta vs. K. Shivraj, Additional Chief Secretary to the Government of Gujarat and another, (1979) 1 SCC 222 and has drawn our attention to the following passage in paragraph 6 of the said report which reads as under :- "It is well-settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order. In S. K. Nizammuddin vs. State of West Bengal the order of detention was made on September 10, 1973 under section 3(2) (a) of MISA based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community and this subjective satisfaction, according to the grounds of detention furnished to the petitioner, was founded on a solitary incident of theft of aluminium wire alleged to have been committed by the petitioner on April 14, 1973. In respect of this incident of theft a criminal case was filed inter alia against the petitioner in the Court of the Sub-Divisional Magistrate, Asansol, but the criminal case was ultimately dropped as witnesses were not willing to come forward to give evidence for fear of danger to their life and the petitioner was discharged. It appeared clear on record that the history- sheet of the petitioner which was before the District Magistrate when he made the order of detention did not make any reference to the criminal case launched against the petitioner, much less to the fact that the prosecution had been dropped or the date when the petitioner was discharged from that case. In connection with this aspect this Court observed as follows :- "We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate." It is true that the detention order in that case was ultimately set aside on other grounds but the observations are quite significant. These observations were approved by this Court in Suresh Mahato vs. The District Magistrate, Burdwan. The principle that could be clearly deduced from the above observations is that if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal. After all the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order." Thus, it is contended by the learned Senior counsel for the petitioner that all the three grounds raised by him are made out and the objection with respect to maintainability of this petition, filed at pre-detention stage is liable to be ignored. Learned senior counsel for the petitioner contended that the detention order can be challenged in such circumstances before its execution because the fundamental right of liberty enshrined under Article 21 of the Constitution of India is required to be protected. ( 5. ) TO elucidate the grounds raised by the learned senior counsel for the petitioner, our attention is drawn to various facts. It has been pointed out that not only the petitioner was not involved in any activities of aforesaid M/s Hind Dairy Food Products, but the explanation given under section 3(2) of the Act will make it clear that the adulteration of the 'Ghee' was an offence to be tried under the Essential Commodities Act, 1980 (hereinafter referred to as the Act of 1980) and, therefore, for the said purposes the detention order could have been passed under the Act of 1980 aforesaid. For the purposes of consideration of such submission, the provisions of section 3(1) and (2) of the Act upto the explanation part are reproduced thus:- "3. Power to make orders detaining certain persons. – (1) The Central Government or the State Government may, - (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, of the security of India; or (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained. (2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained. Explanation.- For the purposes of this sub-section, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act." ( 6. ) ACCORDING to learned senior counsel for the petitioner, a bare reading of explanation will make it clear that since 'Ghee' is one of the Essential Commodities duly notified under the Essential Commodities Act, any violation of such order is punishable under the said Act, therefore, detention was not permissible under the Act. Drawing our attention to the notification so issued, placed on record as Annx.P/22, styled as Milk and Milk Product Order 1992 and the definition of Milk Product given under paragraph 2(g), it is pointed out that the 'Ghee' is one of the Milk Product and since the Order prescribes registration and also prescribes a penalty for any contravention of the Order, the power under the Act was not to be exercised. Thus, it is contended that such an exercise of power was bad in law. It is also contended that Central Government in exercise of power under the Act issued the notification filed along with rejoinder as Annx.P/23, but for the purposes of bringing into ambit of Act, the supply/ service under Milk and Milk Product Order 1992 has not been included into this. It is also contended that Central Government in exercise of power under the Act issued the notification filed along with rejoinder as Annx.P/23, but for the purposes of bringing into ambit of Act, the supply/ service under Milk and Milk Product Order 1992 has not been included into this. The notification has not been amended so far, therefore, the Milk and Milk Product Order is still applicable and for that reason, in terms of the explanation given under sub-section (2) of section 3 of Act no detention order could have been issued against the petitioner. Learned senior counsel for the petitioner further emphatically contended that while making the proposal to initiate action against the petitioner, it was said that the sample obtained from the stores of M/s Hind Dairy Food Products was said to be adulterated, but the report obtained from the Central Food Laboratory where no such adulteration was found, was never brought to the notice of the detaining authority. It is thus contended that this particular material fact was suppressed. It is contended that a report was sent by the Central Food Laboratory Gaziabad indicating that there was no adulteration found. But these reports were neither placed before the respondent No. 2 nor were taken into consideration. It is contended that the report dated 9-5-2009 was much prior to the date of passing of the detention order contained in Annexure-P/2 and had this report been placed before the respondent No. 2, he would not have passed the detention order against the petitioner. The certified copy of the said report was obtained on 26-6- 2009 and that was required to be placed before the Collector, who has passed the order on 13-10-2009, but this material document was concealed. Further, the fact that the petitioner was acquitted in all the cases launched against him in which earlier he was convicted and which were given a reference, were already decided in appeal by the order passed on 7-10-2009 (Annx.P/20) by the learned Sessions Judge, Sheopur, in Criminal Appeal No. 160/2005. Since the petitioner was already acquitted in both the appeals, the detention order passed on grounds of conviction in such criminal cases was not justified. Since the petitioner was already acquitted in both the appeals, the detention order passed on grounds of conviction in such criminal cases was not justified. It is the allegation that the Food Department which has initiated action against the petitioner was the reporting authority and was aware of such decision, but these facts were also concealed before the competent authority and, therefore, the detention order was illegally passed. ( 7. ) THE respondents in response to the notices issued have filed their return and they simply contended that material was available against the petitioner and on being fully satisfied with the charges levelled against the petitioner, it was considered appropriate by the respondent No.2 to exercise the power for preventive detention of the petitioner under the Act. It is contended that the matter was referred to the State Government and the State after being fully satisfied, has passed the order of detention. It is further contended that the petitioner was said to be an accused made on the basis of an order passed by the Chief Judicial Magistrate Sheopur in a case registered against Mahesh Goel and Kamal Kishore vide order dated 19-4-2011, passed in Criminal Case No. 435/2004, and therefore, it could not be said that there was no material available against the petitioner and, therefore, the detention order could not have been passed. As far as the other grounds raised by the petitioner, it is contended by the learned Deputy Advocate General that such grounds are not made out for granting any relief to the petitioner for the simple reason that since the petitioner has been made an accused in a criminal case, his defence will be examined in the trial by the Chief Judicial Magistrate and, therefore, the preventive detention order is justified. Thus, it is contended that the grounds as have been raised by the petitioner, for quashment of the detention order, are not made out and the petition deserves to be dismissed. Learned Deputy Advocate General has placed reliance in the case of Bankatlal vs. State of Rajasthan, (1975) 4 SCC 598 and would contend that 'Supplies' in the context of section 3(1)(a)(iii) means the supply of essential commodities or food stuff in a wholesome form. It does not mean the supply of their adulterated substitute. Learned Deputy Advocate General has placed reliance in the case of Bankatlal vs. State of Rajasthan, (1975) 4 SCC 598 and would contend that 'Supplies' in the context of section 3(1)(a)(iii) means the supply of essential commodities or food stuff in a wholesome form. It does not mean the supply of their adulterated substitute. Drawing our attention to paragraph 18 of the report, it is contended that if the petitioner was found guilty of involvement in supply of food stuff and admittedly 'Ghee' is one of the food stuff he could be detained under the preventive detention prescribed under the Act. ( 8. ) WE failed to understand as to how such a ground is made out when it is categorical stand of the petitioner that he has nothing to do with the supply or even production of such food stuff or milk produce. There are reports that the said 'Ghee' was not found to be adulterated. Therefore, to us the reliance placed by the respondents in the case of Bankatlal (supra) is totally misconceived. Firstly, repeatedly we have asked the learned Deputy Advocate General as to what was the material available with the respondents to show that the petitioner has any link with M/s Hind Dairy Food Products, except the rent agreement executed between the petitioner and the partner of said M/s Hind Dairy Food Products. Nothing could be pointed out to us by the learned Deputy Advocate General. No whisper of evidence much less a cogent evidence relating to the relationship of petitioner with the functioning of M/s Hind Dairy Food Products could be produced before us. As has been detailed hereinabove, it is the categorical stand taken by the petitioner that he has executed a rent agreement with the said M/s Hind Dairy Food Products and has let out his premises to the said Company. Apart from this, no other relationship of the petitioner with the said M/s Hind Dairy Food Products could be established by the respondents. Secondly, the specific pleas raised by the petitioner that sufficient material was not placed before the respondent No.2 for considering whether any detention order was to be passed against the petitioner or not, has not been properly replied either in the return or orally. Secondly, the specific pleas raised by the petitioner that sufficient material was not placed before the respondent No.2 for considering whether any detention order was to be passed against the petitioner or not, has not been properly replied either in the return or orally. No substantial proof of the fact has been brought to the notice of this Court that the reports obtained from the Central Laboratory with respect to the test of the sample of 'Ghee' taken from the stores of M/s Hind Dairy Food Products was placed before the respondent No. 2. In absence of such proofs or even the contentions, this Court is left with no option, but to accept the facts as stated by the petitioner. In our considered opinion, the writ petition deserves to be allowed. Firstly, the respondents have utterly failed to prove that the petitioner has a role to play in the business of M/s Hind Dairy Food Products. He is only the owner of the premises which is let out to said M/s Hind Dairy Food Products. He has no connection with the affairs or business of the said tenant. A landlord cannot be made responsible for an act of the tenant merely because the premises owned by the landlord is let out to the tenant. Secondly, the respondents could not point out by any documentary evidence that despite the specific provisions made in explanation below sub-section (2) of section 3 of the Act, still an action under the Act could be initiated for preventive detention of the petitioner. As has been pointed out by the learned senior counsel for the petitioner if there is specific provisions made for contravention of any supply order under the Act, and a detention is prescribed, no scope was available to the respondents to take recourse of preventive detention of petitioner under the Act. Thirdly, there was no rebuttal to the allegations made that material facts, documents and the pronouncement of the judgment in favour of the petitioner granting him acquittal in criminal cases were not brought to the notice of the detaining authority. If all these facts are taken together, it will be clear that there was no occasion to pass any order of preventive detention against the petitioner. If all these facts are taken together, it will be clear that there was no occasion to pass any order of preventive detention against the petitioner. Our attention is also drawn to the decision of the Division Bench of this Court in case of Banshilal Agrawal vs. State of Madhya Pradesh, Writ Petition No. 12015/09, decided on 14-12-2009. Though in the aforesaid case, certain persons were detained, but the detention orders on some what similar circumstances were found to be illegal and quashed by this Court. ( 9. ) IN the aforesaid analysis, the writ petition deserves to and is hereby allowed. The detention orders Annx.P/1 and P/2 are hereby quashed. There shall be no order as to costs. Petition allowed.