IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 11965 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE C.K.BUCH ============================================================ 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? -------------------------------------------------------------- MOHAMMAD ARIF ISMAILBHAI SHAIKH Versus DISTRICT MAGISTRATE AHMEDABAD -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 11965 of 2004 MS KRISHNA U MISHRA for Petitioner No. 1 MS HB PUNANI, AGP for Respondent No. 1-2,4 RULE SERVED for Respondent No. 2 M IA SHAIKH for Respondent No. 3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE C.K.BUCH Date of decision: 02/12/2004 ORAL JUDGEMENT 1. By this petition under Article 226 read with Articles 21, 22(1) & 22(5) of the Constitution of India, the petitioner detenu has challenged the legality and validity of the order of detention bearing No. FC/TAPAS/ ATK/ SR.NO.6/2004 dated 22.07.2004 passed against the detenu by the District Magistrate, Ahmedabad, in exercise of the powers conferred on him by Section 3(2) of The Prevention of Black-Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as the "PBM Act" ). 2. The impugned order of detention is challenged on number of grounds mentioned in the memo of the petition and it is contended that the same is violative of Articles 21, 22(1) & 22(5) of the Constitution of India and that there is an element of arbitrariness. However, the main ground placed before the court by ld. counsel Ms. Banna Dutta for ld. counsel Ms. KU Mishra for the petitioner is that though there was no cogent material available which can be said to be justifiable in recording subjective satisfaction, the impugned order of detention has been passed and hence the same requires to be quashed and set aside. 3. I have considered the contents of the petition and the stand taken by the detaining authority, State of Gujarat as well as Union of India and their affidavits have been placed on record. Ld. counsel Ms. Dutta has taken this Court through the grounds mentioned in the memo of the petition as well as the contents of the affidavits of Detaining Authority, State Government as well as by Union of India, tendered by ld. counsel appearing for the parties viz. ld. AGP Ms. Punani for the Detaining Authority and State of Gujarat as well as by ld. Addl.CGSC Mr. Shaikh for the Union of India. Ms. Dutta has mainly concentrated her arguments on two grounds. 4. The first ground pressed into service by Ms. Dutta that the order of detention is bad because there was no cogent material on record and subjective satisfaction is mainly recorded on certain assumptions and surmises. She has pointed out relevant paras of the grounds of detention conveyed to the petitioner wherein it is averred that the petitioner can be prosecuted for the offence punishable under Sec.3 R/w Sec.7 of the Essential Commodities Act, 1955 and in the event of filing of such prosecution, the petitioner can apply for bail and competent court can grant such bail. It is further conveyed to the detenu that his activities are potential to continue with the illegal activities of unauthorised business of prohibited petroleum i.e. "solvent" without authority, licence or permit and that may lead to the activities of black-marketing. Undisputedly, as per the record available and grounds conveyed to the petitioner, on 10.07.2004. checking squad raided one superstructure erected somewhere near Dariapur Gate, Nr. Kamar Masjid and about 300 litres of solvent stored in two big drums along with other material was found and muddamal worth Rs.9450.00 was seized. The impugned order of detention came to be passed on 22.07.2004. By that time, no formal prosecution -complaint was filed with the concerned police station. In absence of formal prosecution, the District Magistrate has considered this aspect for passing the order of detention and for recording subjective satisfaction. This, according to ld. counsel Ms. Dutta, violates the constitutional guarantees and, therefore, the impugned order requires to be quashed and set aside. In support of her say, she has placed reliance on the decision of this Court in the case of Vahidbhai Saiyadbhai Sheikh v/s State of Gujarat, 2004(1) GLR 585. For the sake of convenience, I would like to quote relevant part of the cited decision:- "4. Learned Advocate Mr. Tirmizi for the petitioner raised various contentions assailing the order of detention and contended that the order impugned is vitiated on the ground that without even filing of the prosecution, detaining authority came to subjective satisfaction that even if the prosecution is lodged the detenu was likely to be released on bail and was likely to continue his activity. The second contention raised in respect of delay caused in passing of the order. The aid which was carried out according to the learned Advocate for the petitioner on 19.12.2002 and the order of detention was passed on 22.02.2003. According to the learned Advocate, this delay is fatal for the passing of this order of detention against the petitioner and the petition is required to be allowed on this ground alone. ..... ....." It has been further observed in the cited decision after referring the decision of the Apex Court in the case of Rajesh Gulati v/s Government of N.C.T., Delhi & Anr., 2002(7) SCC 129 that when the grounds of detention were scanned and the material produced before the detaining authority, there was no whisper of the fact that for the breach of Essential Commodities Act, 1955, formal prosecution shall be filed and in the facts and circumstances of the cited decision, there was no cogent material on record to show or to justify the apprehension that the detenu would be released on bail if prosecution is lodged. In para-7 of the cited decision, the Court has observed as under:- "7. ..... The record discloses that it is an allegation against the detenu that he was found in possession of blue kerosene as well as white kerosene and instruments like acid to convert blue kerosene in white kerosene, coupled with the statement of the detenu and a panchanama but it is nowhere recorded by the detaining authority that this incident ipso facto reveal the tendency on the part of the detenu that if he is not prevented by detention he was likely to indulge in such activity, in other words, what is revealed by the material on record, is, at the most commission of offence, be it under Essential Commodities Act, may be graver one, but from that record it never flows that the detenu was possessing such tendency of repeating this behaviour in future. Considering the facts and circumstances of the present case as well as facts of the cited decision, in my view ratio enunciated in the cited decision would squarely apply to the facts of the present case and on this ground alone, the present petition can be allowed by quashing and setting aside the order of detention. 5. The second ground pressed into service by ld. counsel Ms. Dutta for the petitioner is that the representation made by the petitioner was not effectively considered either by the Central Government or by the detaining authority and the stand taken by the Central Government in the affidavit can be said to be vague in nature. Undisputedly, by written representation, the petitioner detenu had requested to provide certain documents including the statement of co-accused Kanvarali Bhuvarkhan. Against that, ld.AGP Ms. Punani has submitted that on account of admission made by the present petitioner, there was no need to record the statement of Kanvarali and this fact is reflected in the written communication made by the detaining authority to the ld. Advocate appearing for the present petitioner dated 20.08.2004. It is true that the order of detention is of 22.07.2004 and it was not required for the detaining authority to have statement of Kanvarali for recording subjective satisfaction, but availability of this statement can positively provide a reasonable opportunity to get the order of detention revoked even after the same is recorded at a subsequent stage. As per the record available before the Court today, this Kanvarali is made accused of the offence registered with Dariapur Police Station for the offence punishable under Section 3 R/w Sec.7 of the Essential Commodities Act,1955 and this co-accused Kanvarali was arrested as one of the co-accused of the present petitioner on 03.08.2004. He was granted bail on 04.08.2004 and there is nothing on record to show that even after his arrest, investigating agency even had recorded his statement and State machinery including the Investigating Agency had no statement in any form of this Kanvarali on the day on which written communication was sent to ld. counsel appearing for the detenu. It is true that there may not be any statement of Kanvarali on the date of passing of detention order, but anxiety of the detenu was required to be satisfied at least on 20.08.2004 by giving him copy of the statement of Kanvarali. This clearly violates the privilege flowing from Article 22(5) of the Constitution of India which has resulted into prejudice in making even effective representation and getting the detention order revoked. So, on this ground also, this petition requires to be allowed. 6. For the reasons recorded in the oral judgment, the present petition is hereby allowed. Impugned order of detention dated 22.07.2004 passed by the District Magistrate, Ahmedabad against the detenu is hereby quashed and set aside and detenu is hereby ordered to be set at liberty forthwith if he is not required to be detained in any other case. Rule is made absolute. Direct service is permitted. [ C.K. BUCH, J ] *rawal