1 cri-wp-1064-11 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1064 OF 2011 Shri Ravindra Prakash Nikam ) Age 29 years, residing at 803, ) South Kasaba, Shinde Chowk, ) Solapur (Now detained at Yerwada ) Central Prison at Pune) ) .. Petitioner Vs. 1. The Commissioner of Police ) Solapur ) 2. The State of Maharashtra ) (Through the Secretary ) Preventive Detention, Home ) Department (Spl), Mantralaya, ) Mumbai – 400 032 ) 3. The Superintendent ) Yerwada Central Prison, Pune ) 4. Union of India ) New Delhi. ) .. Respondents Mr. U. N. Tripathi for petitioner. Ms. M. H. Mhatre, APP for State. Mr. Y. M. Nakhawa for UOI. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. RESERVED ON : JUNE 24, 2011 PRONOUNCED ON : JULY 6, 2011 2 cri-wp-1064-11 JUDGMENT (PER B. H. MARLAPALLE,J.): 1. This petition, filed under Article 226 of the Constitution, impugns the order of detention passed by the Commissioner of Police, Solapur, on 1/3/2011 and in exercise of his powers conferred on him under sub section (2) of section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (“the Act” for short). Admittedly, the said order of detention is for a period of six months and it has been approved by the State Government on 8/3/2011. The State Government confirmed the impugned order of detention on 13/4/2011 and for a period of six months. The detention order was served on the detenu on the same day it was passed and thus will continue to operate till 31/8/2011. It has been stated in the order of detention that with a view to prevent the detenu from acting in any manner prejudicial to the maintenance of supplies of essential commodities to the community, it was necessary to make an order under the Act. The detenu was actively indulging in illegal activities punishable under the provisions of Essential Commodities Act, 1955 and more particularly of black marketing of Blue Kerosene and domestic LP Gas for pecuniary gains within the areas of 3 cri-wp-1064-11 Faujdar Chawadi Police Station, Solapur and he used to assault the people with deadly weapons like wooden and iron rods who went against him and he thus created a terror within the jurisdiction of the said police station. His activities of illegal buying of Blue Kerosene which was meant for the consumption or sale to Ration-card holders and also domestic LP Gas which was meant for the consumption or sell to Gas-card holders and instead was being sold in black market on higher rates to the Truck & Auto-Rickshaw drivers who used it as fuel instead of diesel and petrol. This illegal activity committed by the detenu created scarcity of Blue Kerosene and domestic LP Gas and severely affected the supply of essential commodities. His earlier criminal record indicated that he was a habitual offender and despite the fact that police had arrested him for the above mentioned offences on many occasions, he continued his illegal activity of selling Blue Kerosene and domestic LP Gas and thus committed offences under the Essential Commodities Act, 1955. The shortage of Blue Kerosene and domestic LP Gas resulted in unrest among the common people of the locality and it disturbed the peace and tranquility of the society at large. 2. In support of the detention order, specific instances of six 4 cri-wp-1064-11 crimes registered against the detenu and in-camera statements of two witnesses have been relied upon. C.R. No.3117 of 2010 and C.R. No. 3007 of 2010 were registered on 23/10/2010 and 28/1/2010 respectively with the Faujdar Chawadi Police Station against the detenu, whereas C.R. Nos.3011 of 2009 and 3054 of 2009 were registered on 4/3/2009 and 3/8/2009 respectively with the very same police station. Other two CRs which have been considered were registered in the year 2004 and 2001 which we need not take into consideration. Though six CRs have been relied upon, even if we find two such CRs registered against the detenu read along with the in- camera statements of two witnesses, support the detention order, it would not be necessary for us to examine the remaining CRs. It is well settled that the illegal activities in the recent past with reference to the date of detention would be relevant while scrutinizing the challenge to the order of detention. 3. Undoubtedly, along with the order of detention, reasons for detention and the copies of the documents relied upon while passing the order of detention have been provided to the detenu along with their translations. 5 cri-wp-1064-11 4. Though a number of grounds have been raised to challenge the detention order, the learned counsel for the detenu has more particularly pressed the following grounds:- (i) That the seized material was Blue Kerosene could have been supported by the C.A. Report and admittedly the detention order stated that the samples of Blue Kerosene seized on 23/10/2010 were sent to the Regional Forensic Science Laboratory, Ganesh Khind, Pune and its report was awaited. In the absence of the C.A. Report, there was no material before the Detaining Authority to believe that the seized commodity was an essential commodity and, therefore, the order of detention is without application of mind. It has been further claimed that a copy of the C.A. Report ought to have been made available to the detenu along with the order of detention so as to make an effective representation at the earliest and this failure has violated the guarantee provided under Article 22(5) of the Constitution. 6 cri-wp-1064-11 (ii) The Detaining Authority has taken into consideration old and stale cases from the year 2001 to 2009 and these cases have no proximity in point of time. The satisfaction of the Detaining Authority is, therefore, vitiated and that itself will be sufficient to set aside the order of detention. (iii) It is duty of the Detaining Authority to apprise the detenu his right to make a representation to the Detaining Authority, the State Government and the Central Government. However, in the order of detention the detenu has not been apprised of his right to submit a representation to the Central Government and merely the address of the Secretary to the Government of India, Ministry of Commerce and Civil Supplies, Department of Civil Supply, Krishi Bhavan, New Delhi has been given. This failure of the Detaining Authority has undermined the right to make an effective representation to the Central Government and hence the protection under Article 22(5) of the Constitution has been violated. 7 cri-wp-1064-11 (iv) The representation submitted on 13/4/2011 to the Government of India was not decided in time and no final decision was communicated to him on the said representation. This delay caused on the part of the Central Government has also vitiated the order of detention. The learned counsel for the petitioner has relied upon the following decisions of the Supreme Court in support of his challenge:- (a) Kamleshkumar Ishwardas Patel vs. Union of India and ors. [1995 (2) Mh.L.J. 381]. (b) Rajammal vs. State of Tamil Nadu and anr. [AIR 1999 SC 684]. 5. In the reasons elaborately set out in the order of detention, though six CRs have been considered, as noted earlier, it is not necessary to take into consideration the stale CRs i.e. the CRs registered in the year 2001 and 2004 against the detenu and even if we do not take into consideration the other two CRs registered in the year 8 cri-wp-1064-11 2009, C.R. No. 3117/2010 and C.R. No. 3007/2010 registered against the detenu could undoubtedly support the detention order. On 23/10/2010, PI Kausadikar of Crime Branch, Solapur City, along with two panchas and the informant and the raiding party reached the spot at Murarji Peth, Dagdi Chawl, Near Shubham Automobiles and apprehended the detenu who was trying to escape after seeing police raiding party at about 1830 hrs. When the raiding party reached the spot, it found two auto-rickshaw trolleys containing five iron barrels and 33 iron barrels lying on the ground. This five iron barrels were loaded in each auto-rickshaw trolley bearing Registration Nos. MH-13-R-8919 and MH-12-AQ-7858. Each barrel had about 180 liters of Blue Kerosene which is distributed under Public Distribution System and thus the total stock of kerosene seized at the sport was 7740 liters. The seizure panchanama was drawn and the barrels along with the kerosene and the two auto-rickshaws were sized. C.R. No. 3117 of 2010 was registered for the offences punishable under Sections 3 and 7 of the Essential Commodities Act, 1955. The detenu was produced before the learned Chief Judicial Magistrate on 24/10/2010 and was remanded to police custody till 26/10/2010 which 9 cri-wp-1064-11 was again extended upto 29/10/2010. During the interrogation, he disclosed the names of three of his other associates who were subsequently taken into custody. On 4/11/2010 he was remanded to magisterial custody and was subsequently released on bail, whereas one of his associates by name Dada Ingale could not be arrested. It is pertinent to note that the informant in this case was Shri Deepak Dattatraya Chavan, Food Supply Inspector at “D” Division, Solapur and he was dealing with distribution of kerosene in the public distribution system day in and day out. The second C.R. arose from the incident of 28/1/2010. The complainant Shri Gulab Rasul Ghudubhai Shaikh was the Supply Inspector, Zone -A, Solapur. The police party led by Shri N.S. Patil, PSI, reached the lane of Ashok Cable Wires at Shinde Chowk and raided an auto-rickshaw to which the detenu was selling LP Gas as fuel with the help of electric motor into the fuel tank of auto-rickshaw bearing Registration No.MH-13-AF-1456. The rickshaw driver and the detenu were apprehended at the spot. During further enquiry, Shri Tanaji Shinde, who was filling the fuel tank of the auto-rickshaw told the raiding party that he was selling domestic cooking gas as fuel to 10 cri-wp-1064-11 auto-rickshaw drivers at Rs.50/- per Kg. since last 8 days and that the detenu was the owner of that illegal business. The police seized the auto-rickshaw bearing Registration No. MH-13-AF-1456, one LP Gas cylinder, one electric motor with nylon pipe and regulator and one electric weigh machine. C.R. No. 3007 of 2010 came to be registered for the offences punishable under Sections 3 and 7 of the Essential Commodities Act, 1955 and thus the auto-rickshaw driver – Tanaji Shinde and his associate Chetan Vitthal Zipare came to be arrested. The detenu was arrested on 29/1/2010 and was produced before the learned Chief Judicial Magistrate, Solapur. He was in magisterial custody till 12/2/2010 and was released on bail of cash surety of Rs.5000/-. On completion of investigation, a charge-sheet has been filed. 6. So far as the in-camera statements of witnesses are concerned, the detention order has referred to witness “A” and witness “B”. We have verified the record and the statement of witness “A” was recorded on 1/2/2011 and verified on 14/2/2011, whereas statement of witness “B” was recorded on 5/2/2011 and verified on 14/2/2011 by ACP, Division – I, Solapur. We are satisfied that there 11 cri-wp-1064-11 was sufficient material before the Detaining Authority, which material he has considered, applying his mind and then passed an order and while being aware that the detenu was released on bail. The activities of the detenu were continuing in nature and he was causing severe blows to the maintenance of supplies of essential commodities. Section 3(1) of the Act states that any officer of the State Government, not below the rank of the Secretary, duly empowered, 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 commodities essential to the community, it is necessary so to do, make an order directing that such person be detained. As per subsection (2) of Section 3, the Commissioner of Police, wherever he has been appointed, may also exercise the powers conferred under Section 3(1) of the Act. Explanation below subsection (1) of Section 3 has set out the meaning of the expression “acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community”. We have no doubt in our mind that the material considered by the Detaining Authority and particularly the two CRs registered in the year 2010 and two in- camera statements recorded of the witnesses support the order of 12 cri-wp-1064-11 detention. 7. So far as right to representation is concerned, para 9 of the reasoned order of detention reads thus, “9. You are, further informed that you have a right to make a representation to the State Government against the order of detention and that you shall be afforded the earliest opportunity to make such a representation. Should you wish to make such a representation, you should address it to the Secretary to the Government of Maharashtra (Preventive Detention), Home Department (Special), Mantralaya, Mumbai 400 032 and to the Secretary to the Government of India, Ministry of Commerce and Civil Supplies, Department of Civil Supply, Krishi Bhavan, New Delhi and submit it through the Superintendent of the Jail where you have been detained.” This paragraph has two parts. In the first part it has been stated that the detenu has a right to make a representation to the State Government. In the second part the address of the Secretary to the 13 cri-wp-1064-11 Government of Maharashtra has been provided and in addition the address of the Secretary to the Government of India, Ministry of Commerce and Civil Supplies has also been provided to the detenu and without any doubt to submit a representation through the Superintendent of the jail where he has been detained. It was contended by Mr. Tripathi, the learned counsel for the detenu that in the first part of paragraph 9, the detenu was not apprised of his right to make a representation to the Central Government and, therefore, the order of detention is vitiated. In this regard, as noted earlier, he has relied upon a Constitutional Bench judgment in the case of Kamleshkumar Patel (Supra). We do not find much force in these arguments. Admittedly, the detenu submitted a representation on 13/4/2011 to the Central Government and it came to be decided and rejected on 25/5/2011. Mr. Nakhawa, the learned counsel for the Union of India has placed before us a copy of the said order along with the letter dated 24/6/2011 he has received from the Department of Consumer Affairs, Government of India. Be that as it may, the Department of Consumer Affairs called for the remarks from the Government of Maharashtra vide its letter dated 5/5/2011 and they were received on 9/5/2011. The representation was considered by a 14 cri-wp-1064-11 committee of three members in the Department of Consumer Affairs, Government of India and by a reasoned order it came to be rejected. Thus the petitioner has exercised his right to submit a representation to the Central Government and too effectively. 8. A Constitution Bench, in the case of K. M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India [1991 (1) SCC 476] stated, “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” occurring in clause (5) 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 15 cri-wp-1064-11 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.” Thus, if the delay caused on account of any indifference or lapse it would adversely affect further detention of the detenu. We have perused the order dated 25/5/2011 rejecting the reprsentation submitted by the detenu to the Central Government and we do not find any compelling reason to hold that it was delayed or there was any indifference or lapse on the part of the committee to decide the same. 9. Mr. C. D. Chaudhari, Under Secretary, Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai has stated in his affidavit that the representation dated 13/4/2011 submitted on behalf of the detenu was received on the same day in the evening and there was a holiday on 14/4/2011. The remarks from the Detaining Authority were sought by letter dated 15/4/2011 and were received on 20/4/2011 vide the Detaining Authority’s letter dated 19/4/2011. The Under Secretary submitted his note to the Deputy Secretary on 16 cri-wp-1064-11 21/4/2011 and the Deputy Secretary, in turn, placed the same before the Additional Chief Secretary (Home) on the same day. The representation was rejected on 28/4/2011 and the order was communicated vide letter dated 29/4/2011 to the detenu through the Superintendent, Yerwada Central Prison, Pune. Reference to the Advisory Board was made on 9/3/2011 and the Advisoary Board rendered its opinion on 6/4/2011 and it was received in the Home Department on 7/4/2011. The confirmation order was passed on 13/4/2011. 10. Now coming to the last ground that C.A. Reports were not made available to the detenu, we have noted earlier that the complainant for the raid on 20/3/2010 was the Food Supply Inspector himself. He could not be said to be a person not familiar with Blue Kerosene being sold under the public distribution system. The seizure panchanamas which are in the file and which have been signed by two independent witnesses have been perused by us. They specifically state the seized liquid fuel as kerosene. The detenu is neither a retailer, a whole-seller or a license holder for fair price shop from which the kerosene is distributed. Kerosene is an essential commodity 17 cri-wp-1064-11 within the meaning of the Essential Commodities Act, 1955. During two different raids, two panchanamas of seizure were drawn and they are on record. The panch witnesses were different at each time and the seized fuel is kerosene at the first instance and LP Gas cylinder at the second time. Hence on these grounds also the challenge to the order of detention has no substance. 11. In the premises, this petition must fail and the same is hereby dismissed. Rule is discharged. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)