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2024 DIGILAW 1363 (GUJ)

Keval Sureshbhai Bhundiya v. District Magistrate

2024-06-24

ILESH J.VORA, VIMAL K.VYAS

body2024
JUDGMENT : (PER : HONOURABLE MR. JUSTICE ILESH J. VORA) 1. By this petition under Article 226 of the Constitution of India, petitioner – Keval Sureshbhai Bhundiya, has challenged the order dated 07.02.2014 passed by the respondent – District Magistrate, Porbandar directing him to be detained under the provisions of the Prevention of the Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as “the PBM Act of 1980” for short). 2. The said order has been passed in purported exercise of powers conferred by sub-section (1) read with sub- clause (b) of sub-section (2) of Section 3 of the said Act. 3. Brief facts giving rise to file the petition are that the applicant detenue was employee of one Mr.P.D. Vyas, who is in business of transportation doing his business in the name and style P.M. Logistics. In order to implement the scheme for distribution of essential commodities like wheat, rise, etc. meant for the beneficiary of various scheme launch by the State as well as the Central Government, to be distributed through Public Distribution System (“PDS” for short) as well as through fair price shops, had been stored in a different godowns under the jurisdiction of Porbandar District. The employee of State Government as well as the persons, who were involved in the PDS System as well as Logistic Work, conspired to misappropriate the huge amount of food-grains for their personal gains. It is alleged that during 01.01.2020 to 04.01.2023, the applicant and others in all 13 persons defrauded the Government by misappropriating the huge quantity of food-grains stored in the Government godowns under the jurisdiction of Porbandar District. It was noticed that by manipulating stock registered as well as by making forged gate-passes, the huge stocks of food- grains worth Rs.99,77,551/- being misappropriated by committing the act of forgery and criminal breach of trust. The P.M. Logistic, who was awarded a contract for the distribution of food grains at Ranavav Taluka failed to upload the necessary information of the stocks on the online application of the Government. The applicants and others, who were involved in the distribution of the food grains committed an offence under the provisions of the Essential Commodities Act, 1955 and under the Penal Laws. The applicants and others, who were involved in the distribution of the food grains committed an offence under the provisions of the Essential Commodities Act, 1955 and under the Penal Laws. After in depth inquiry made by the State Government, the FIR came to be lodged with Ranavav Police Station, Porbandar for the offence punishable under Sections 3 and 7 of the Essential Commodities Act and Sections 406, 409, 120B, 465, 467, 471 and 477A of the IPC. The said FIR was registered on 13.01.2023, against 12 persons. The applicant herein was shown as accused no.12 as being a representative of the P.M. Logistic, he had played active role in removing the stocks of the food grains with the aid of godown Manager and others, who were entrusted the work to maintain the stocks as well as distribution system. The applicant herein was arrested on 28.01.2023 and was enlarged on bail on 12.10.2023. The Porbandar, DSP made a proposal to detain the applicant and others under the PBM Act of 1980. The District Magistrate, Porbandar, after considering the entire material supplied by the sponsoring authority, satisfied that with a view to preventing the applicant from acting in any manner prejudicial to the maintenance of supplies of essential to the community, it is necessary to detain the applicant who derived the gain from the said malpractice, which act of the applicant defeat the provisions of the Essential Commodities Act. 4. In the aforesaid set of circumstances, by exercising powers under Section 3(1) of the PBM Act of 1980, the District Magistrate, Porbandar passed detention order dated 07.02.2024 and the same was executed upon the applicant. The District Magistrate, Porbandar, after consideration the entire circumstances and the documentary evidence was of the opinion that mere registration of the FIR against the detenue would not effectively prevent him from acting in a manner prejudicial to the maintenance of supplies of food grains and further, opined that after releasing on bail, it quite possible that the detenue will continue with the illegal and antisocial activities and it is imperative for the effective measures to detain the applicant preventing him from acting in a manner prejudicial to the maintenance of essentially commodities. 5. The detention order dated 07.02.2014 was intimated to the State Government along with the grounds on which the order was made and the State Government has approved the order impugned. 5. The detention order dated 07.02.2014 was intimated to the State Government along with the grounds on which the order was made and the State Government has approved the order impugned. The Central Government vide communication dated 19.02.2024 was also informed along with the grounds of detention, etc. 6. Being aggrieved with the order impugned dated 07.02.2024, the present application has been filed on 11.02.2024. 7. The applicant herein made a representation dated 12.02.2024 to the Central Government. 8. During the pendency of the application, the Committee constituted to consider the representation under the PBM Act of 1980, vide its order dated 08.05.2024, rejected the representation made by the applicant herein. 9. We have heard learned counsel Mr.Nirav Sanghvi for the applicant and Ms. Shruti Pathak, learned AGP for the respondent – State. 10. Mr. Nirav Sanghavi appearing for and on behalf of the applicant detenue, made the following submissions: (a) That there was a delay in disposal of representation made to the Central Government as well as State Government. The written representation was made on 11.02.2024 and the same was rejected by the Committee on 08.05.2024. Thus, it is evident that there is no explanation for the delay in consideration of representation; that a representation of detenue whose liberty is in peril, should be considered and disposed of as expeditiously as possible and if any delay on the part of the Government, then it should be properly explained, otherwise the time gape of undue delay would be considered as a fatal because it is a constitutional obligation of the Government to consider the representation forwarded by the detenue without any delay. (b) That there is a delay in passing the order of detention, which is evident from the order of the detention itself as the same was passed on 07.02.2024, whereas the FIR under the provisions of the Essential Commodities Act was registered against the applicant and others on 13.01.2023, as such there is a delay of more than 11 months in passing the order of detention. That in absence of any complaint in the interregnum, the conclusion of the detaining authority that it was necessary to detain the applicant with a view to preventing him from acting in a manner prejudicial to the maintenance to the supplies of the commodities essential to the community has no rationality and there is no material placed before the authority to show that applicant would indulge in future in such kind of activities and therefore, while passing the order, the authority did not apply its mind and in a mechanical manner, without any material, the order was passed. (c) That the grounds for detention has no nexus with the expression “acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community” as explained under Section 3 of Act of PBM 1980 and therefore, where the offence is registered under the Essential Commodities Act and the applicant has been released on bail, the solitary offence is thus not necessarily sufficient for the action under the preventive detention. 11. In view of the aforementioned submissions, learned counsel Mr. Sanghavi would submit that, during the investigation of the case, the police did not find any short fall in the stock stored in the various godowns under the jurisdiction of Porbandar district and considering the solitary offence registered against the applicant herein, the alleged apprehension recorded by the authority cannot be said to have either affected adversely or are likely to affect adversely the maintenance of supply of good grains essential to the community and thus, therefore, he prays that the applicant is under detention since 07.02.2024 and the maximum period of detention is only 06 months, which is going to complete in the month of August, 2024 and in that view of the matter as well as the grounds urged hereinabove, the order impugned may be quashed and set aside. 12. On the other hand, opposing the application, learned State Counsel Ms. Shruti Pathak reiterating the contents of the affidavit, has contended that, the applicant is employee of P.M. Logistic owned by co- accused Mr. P.M. Vyas and was aware of procedure how to supply the quantity of food grains to end uses stored in the government godown and the P.M. Logistics was having the requisite permission under the Essential Commodities Act for distribution of the food grains. P.M. Vyas and was aware of procedure how to supply the quantity of food grains to end uses stored in the government godown and the P.M. Logistics was having the requisite permission under the Essential Commodities Act for distribution of the food grains. In such background facts, when the inspection carried out, it came to notice to the authority that there has been huge difference with respect to stock of essential commodities which was stored for the distribution through PDS to be supplied to the fair price shops so that, the beneficiaries would get it in a reasonable price. The applicant and co-accused, conspired to misappropriate the essential commodities worth Rs. 99 lakhs by forging government records and making manipulation in the stock register and gate pass etc., whereby, they obtained illegal benefits and caused a monetary loss the government exchequer. 13. In view of the aforesaid facts, Ms. Shruti Pathak, learned AGP would further submit that, the order of detention dated 07.02.2024 was immediately forwarded to the State Government for its approval and on 17.02.2024, the approval was given by the State. She would further urged that within 7 days from the date of order, the report was forwarded to the Central Government together with the grounds of detention was made and matter was placed before the Advisory Board within 3 weeks from the date of order. Thus, there is no any breach of any mandatory provisions of PBM Act, 1980. 14. In view of the aforesaid contentions, learned State counsel Ms. Shruti Pathak, would urge that, once the offence is registered under the Essential Commodities Act, the authority can invoke Section 3(1) of the PBM Act, 1980 for passing an order preventing the applicant acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. Thus, therefore, there is sufficient material before the authority for arriving subjective satisfaction to the effect that the act of the applicant would likely to affect supplies of commodities even after he is releasing from jail and therefore, at this stage, sufficiency of material available to the detaining authority is not to be examined by the Court. Lastly, she would urge that, there is no delay in passing the detention order as well as examining the representation made by the applicant. 15. Lastly, she would urge that, there is no delay in passing the detention order as well as examining the representation made by the applicant. 15. Having regard to the facts and circumstances of the present case, the issue falls for our consideration is as to whether the order of detention passed by the District Magistrate, Porbandar in exercise of his power under the provisions of the PBM Act, 1980 is sustainable in law? 16. Before adverting to the submissions, we may refer to Section 3 of the Act, which authorized the authority to pass an order of detention. Section 3 reads as under: 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, 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 the commodities 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, 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 (b) dealing in any commodity— (i) which is an essential commodity as defined in the Essential Commodities Act, 1955 (10 of 1955), or (ii) with respect to which provisions have been made in any such other law as is referred to in clause (a), with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid. (2) Any of the following officers, namely:— (a) district magistrates; (b) Commissioners of Police, wherever they have been appointed, may also if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub- section. (3) When any order is made under this section by an officer mentioned in sub-section (2) he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government: Provided that where under section 8 the grounds of detention are communicated by the authority making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that for the words “twelve days”, the words “fifteen days” shall be substituted. (4) When any order is made or approved by the State Government under this section or when any order is made under this section by an officer of the State Government not below the rank of Secretary to that Government specially empowered under sub-section (1) the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. 17. In light of the statutory provision and considering the grounds for detention, we may first examine the issue with regard to delay in disposal of the representation by the Central Government. It has been strenuously contended that the delay in deciding the representation would indirectly breach of the mandate of Article 22(5) of the Constitution of India. On the other hand, learned AGP Ms. Shruti Pathak has contended that there is no time limit to consider the representation. It is settled legal position of law that there is no inflexible rule regarding the time available to the Government to consider the representation. On the other hand, learned AGP Ms. Shruti Pathak has contended that there is no time limit to consider the representation. It is settled legal position of law that there is no inflexible rule regarding the time available to the Government to consider the representation. However, the authority is bound to consider the representation submitted at the earliest and in case of delay, there must be explanation to justify the delay so as to avoid the interference of the constitutional courts. The Supreme Court time and again in its various pronouncements observed and held that, in considering the representation, the diligence of very high degree is expected from the authorities in cases of preventive detention as it involved curtailment of some of the most constitutional guarantees and therefore, utmost expedition is essential in handling the representation submitted by the detenue invoking their constitutional right under Article 22(5). Lethargy, lapses, negligence, delay, callousness etc. on the part of the concerned authorities in dealing with the representation shall be viewed seriously and definitely result in interference by the constitutional court for breach of the mandate of Article 22(5) of the Constitution of India. Reference can be made of the case of K.M. Abdulla Kunhi Vs. Union of India, 1991 (1) SCC 476 , wherein, the observations of the constitutional bench, made following observations : “It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occuring in clause (5) of of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard it depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.” 18. The requirement however, is that there should not be supine indifference slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.” 18. In light of the settled position of law in respect of delay in deciding the representation and considering the peculiar facts of the present case, we are of the considered view that, the committee constituted by the Government for deciding the representation of the applicant took 87 days in deciding the representation. The detention order came to be passed on 07.02.2024. Representation to the Central Government was submitted on 11.02.2024 and same was decided on 08.05.2024. Upon perusal of the contents of the affidavit, we do not find any explanation that why same was not decided as expeditiously as possible. The time gap of 87 days, in absence of any explanation, to be treated as undue delay in deciding the representation. If proper explanation would have offered, this Court could certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. In such circumstances, we are of the firm view that, the delay in deciding the representation, would render the detention invalid as being violative of constitutional obligation enshrined under Article 22(5) of the Constitution of India. 19. The second contention raised is that, there was a delay in passing the detention order and same vitiates the detention itself. In the facts of the present case, the authority noticed the irregularities in the stock of the food grains in the month January, 2023. The FIR under the Essential Commodities Act as well as under the penal laws came to be lodged on 13.01.2023. The sponsoring authority made a proposal to exercise power under Section 3 of the PBM Act, 1980 on 26.01.2024. The order impugned came to be passed on 07.02.2024. In the aforesaid admitted facts, it is evident that since 13.01.2023, the authorities were knowing the alleged mal-practise as well as antisocial activities affecting the supply of the commodities and despite of these facts, the authority did not initiate any proceedings and set silent and waited for about 11 months. In short, we found that, there is a gap of 11 months in passing the detention order. In short, we found that, there is a gap of 11 months in passing the detention order. On the issue of delay in passing the detention order, the Supreme Court in case of Saeed Zakirhussain Malik Vs. State of Maharashtra (2012) 8 SCC 223, held that, prompt action in such matter should be taken as soon as the incident as mentioned in the FIR as well as referred in the grounds for detention have taken place. Relevant para-27 reads as under: “As regards the second contention, as rightly pointed out by learned counsel for the appellant, the delay in passing the detention order, namely, after 15 months vitiates the detention itself. 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. Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned” 20. We take the notice of the admitted fact that during the gap of 11 months time, no any fresh complaint being registered against the applicant. In absence of any complaint or other materials, the conclusion of the detaining authority that it was necessary to detain the applicant with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies of the commodities essential to the community has no rationality and the subjective satisfaction being arrived without any material. In such set of circumstances, we are of the view that considering the undue delay of 11 months between the prejudicial activities and passing of the detention order, the detaining authority failed to examine such delay and did not assign any reasons or explanation as to why such delay has occasioned. 21. In such set of circumstances, we are of the view that considering the undue delay of 11 months between the prejudicial activities and passing of the detention order, the detaining authority failed to examine such delay and did not assign any reasons or explanation as to why such delay has occasioned. 21. In view of the aforesaid discussions, we came to the conclusion that the impugned detention order has been rendered illegal for two reasons i.e. (i) there was a delay in passing detention order and (ii) there was unexplained delay in deciding the representation of the applicant detenue. 22. In light of the above discussions, we have no hesitation in quashing the order of detention on the ground as discussed above, as the detention order has become illegal for violation of Article 22(5) of the Constitution of India and accordingly, the order of detention dated 07.02.2024 is hereby quashed. We direct the detenue to be set at liberty forthwith, if he is not required in any other case. Rule is made absolute accordingly. Direct service permitted.