IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3218 of 2005 For Approval and Signature: HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- VASHRAMBHAI MAVJIBHAI PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3218 of 2005 MR FEROZ H PATHAN for Petitioner No. 1 MR IM PANDYA, AGP for Respondent No. 1,2, 3 MR MIA SHAIKH for Respondent No.4 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 04/04/2005 ORAL JUDGEMENT 1. This Special Civil Application under Article 226 of the Constitution of India has been filed by the petitioner challenging his detention in pursuance of the order passed against him by the District Magistrate, Ahmedabad on 19.12.2004 in exercise of powers conferred upon him vide Sub-Section (2)(a) of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (PBM Act for short). The petitioner is under detention in pursuance of the said order from 01.12.2004. 2. The grounds of detention as placed on record reveal the factual background that on 22.09.2004, 24.09.2004 and 27.09.2004, the Deputy Mamlatdar (Supply), Sanand checked and inspected fair price shop situated at village Shiyavada managed by Shiyavada Dangar Utpadak Sahakari Mandli Limited. The present petitioner was the secretary of the said Co-operative Society and Jerambhai Somabhai Patel, who was bill clerk and was keeping accounts of the said fair price shop. On checking and inspection, it was found that the present petitioner being Secretary of the said co-operative society in collusion of Jerambhai Somabhai Patel, bill clerk committed grave illegalities and irregularities in running of the said fair price shop. It was found that two bill books were kept, one of which was fabricated and some more amount was recovered by the petitioner for distributing kerosene amongst the card holders. From the quota of July and August, 2004 of kerosene, it was found that firstly, more amount was recovered from the card holders and that out of the said quota of 120 liters of kerosene was disposed of illegally. In the month of September, 2004, though 2700 liters of quota was allotted to the said fair price shop, but only 1100 liters of kerosene was obtained and out of that quota, firstly from card holders per liter more amount was realized and 25 liters of kerosene was found to have been disposed of illegally. It was also found that 660 Kg. of wheat and 146 Kg. of rice were disposed of illegally, which were required to be distributed amongst the needy card holders. Not only that for wheat and rice more amount was realized from the card holders than the scheduled prices, this illegality was committed in respect of quota of wheat and rice from July, August and September, 2004. It was also found that the quota of wheat and rice obtained by the petitioner to distribute the same amongst the card holders as per the scheduled scheme, was disposed of and sold at the rate of Rs.80-00 per 20 Kg. and at the rate of Rs.160-00 per 20 Kg. of wheat and rice. From 2700 liters of kerosene of the quota of September, 2004, it was found that 1600 liters of kerosene were disposed of illegally and was not distributed amongst the card holders, other irregularities were also found. After proper inquiry sponsoring authority made proposal to the detaining authority. The detaining authority, after going through the relevant papers came to the conclusion that though the prosecution was launched against the petitioner for the breach of Sections 3 and 7 of the Essential Commodities Act, 1955 and though a licence to the said fair price shop was suspended for 90 days, such steps were not sufficient to prevent the black marketing activities of the petitioner. The detaining authority reached to the subjective satisfaction that the petitioner, in collusion with bill clerk Jerambhai Somabhai Patel was acting in a manner prejudicial to the maintenance of supplies of commodities essential to the community and to prevent his illegal activities, there was no other alternative except to detain the petitioner under the PBM Act. The detaining authority, therefore, passed the order of detention under the PBM Act which is under challenge in this petition. 3. Learned advocate Mr.M.R.Prajapati for the petitioner, learned AGP Mr.I.M.Pandya for the respondents No.1, 2 and 3 and learned standing counsel for the Central Government Mr.M.I.A. Shaikh for the respondent No.4 were heard at length. The affidavit-in-reply as filed by the detaining authority, affidavit-in-reply as filed by Mr.H.C.Kapadia, Deputy Secretary of the Government of Gujarat, Food, Civil Supplies & Consumer Affairs Department, Sachivalaya, Gandhinagar and affidavit-in-reply filed by Mr.A.K.Ganguly, under Secretary in the Department of Consumer Affairs, Food and Public Distribution, New Delhi, were also taken into consideration. 4. The various grounds were urged on behalf of the petitioner to challenge the order of detention as opposed and controverted by the learned AGP as well as learned standing counsel for the Central Government, it appears that this Special Civil Application can be examined and disposed of, on the sole issue as to whether the right of the detenu to make effective representation as enshrined by Article 22(5) of the Constitution of India is infringed. 5. It was urged on behalf of the petitioner that going through the grounds of detention as well as the papers served upon the petitioner, it clearly appears that the detaining authority relied upon two aspects, firstly upon the bill books alleged to have been fabricated in duplicate and secondly, ration cards alleging either that proper quota was not allotted to the card holders or if allotted then at higher price. It was urged that the bill books and ration cards are seized by the competent authority and relied upon to arrive at subjective satisfaction, but the copies of the same are not made available to the detenu adversely affecting the right of detenu to make effective representation. 6. Having regard to the rival contentions, it is necessary to refer to a decision of the Division Branch of this Court in the matter of BUDHABHAI SOMABHAI PARMAR Vs. DISTRICT MAGISTRATE KHEDA & ORS., as reported in 1989 (1) G.L.R. 325. In similar circumstances, the Division Bench of this Court, after relying upon the decision of the Apex Court in the matter of Hansmukh v. State of Gujarat and Ors., as reported in AIR 1981 SC 28 observed that the records maintained by the detenu like books of account and bill books, while running fair price shop, are basic facts containing the grounds of detention. In paragraph No.8, the Division Bench of this Court, in the above said decision of Budhabhai (Supra) observed as under:- "However, the learned Counsel for the petitioner is on a stronger footing when he has pointed out that copies of bill books which have been referred to in the grounds of detention and in respects of which irregularities and illegalities are alleged to have been committed are not supplied to the detenu. It could not be disputed by the learned Counsel for the respondents that the copies of the bill books in respect of pamoline oil, sugar, wheat and rice, that is the commodities in question, have not been supplied to the detenu. On going through the grounds of detention it is evident that there is profuse reference to bill books in respect of the aforesaid commodities. It is also clear that the bills are the primary material from which the entries will be posted in the stock register. While distributing the essential commodities, the first document to be prepared would be a bill. Whether the bill books were blank or written or they were written falsely is altogether a different question. Had the copies of bill books, in whatever form they were, been supplied to the detenu, he would have certainly been able to make his representation effectively. If the bill books were blank, on one piece of paper giving details about the bill books and containing the remark 'blank' would be considered sufficient compliance. Since the very alleged illegal activities were in respect of bill books and the maintenance of stock register, it has got to be held, in the facts and circumstances of the case, that bill books did from part of basic facts constituting the offence and the alleged prejudicial activities. Therefore, it has to be included in the term "grounds" which occurs in Art. 22(5) of the Constitution of India and also in Sec.8 of the Act." 7. The grounds of detention abundantly makes it clear that the detaining authority relied upon basic materials of bill books alleged to have fabricated by the detenu. The detaining authority, as well, relied upon the ration cards and entries made therein, in arriving at subjective satisfaction. True it is that the detaining authority also relied upon the statements of the card holders as explained by the detaining authority in paragraph No.8 of his affidavit-in-reply. Undoubtedly, in view of the above ratio laid down by the Division Bench of this Court in the matter of Budhabhai (Supra), the bill books and ration cards would be basic material upon which the detaining authority formed his subjective satisfaction. Non-supplying of such basic documents, would affect the right of detenu of making effective representation as envisaged by Article 22(5) of the Constitution of India, and the further detention of the petitioner would be illegal, invalid and not in accordance with law. In above view of the matter, the order challenged in this Special Civil Application is required to be quashed and set aside on this ground alone. 8. In the result, the petition is allowed. The order passed by the District Magistrate, Ahmedabad on 19.12.2004, against the petitioner in exercise of powers under Sub Section (2)(a) of Section 3 of the PBM Act is hereby quashed and set aside. The detenu Vashrambhai Mavjibhai Patel is hereby ordered to be set at liberty forthwith if he is not required to be detained in jail for any other purpose. Rule is made absolute. Direct service is permitted. [J. R. VORA,J.] (vijay)