SCA/15720/2007 1/34 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15720 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? 1 & 2 YES ; 3 to 5 NO ========================================================= VRUJLAL NATVARLAL RAYKUNDALIYA - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR HR PRAJAPATI for Petitioner(s) : 1, MR PATHIK ACHARYA ASSTT GOVERNMENT PLEADER for Respondent(s):1-3 MR HARIN RAVAL with M.IQBAL A SHAIKH for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 02/11/2007 C.A.V.JUDGMENT : 1. Invoking Articles 14, 19, 21 and 226 of the Constitution, the petitioner has prayed for a writ of habeas corpus and challenged the order dated 29.5.2007 made in exercise of power under SCA/15720/2007 2/34 JUDGMENT section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1955 (for short, "the Act"). The prayer for release of the petitioner was pressed only on the grounds that representation of the petitioner was not expeditiously disposed and drastic measure of preventive detention was taken without examining the option of filing a criminal complaint for the alleged offence. 2. According to the grounds of detention supplied with the impugned order dated 29.5.2007, kerosene was declared to be an essential commodity under the provisions of section 2 of the Essential Commodities Act, 1955 and, according to the notification issued under section 3 of that Act, no dealer appointed under the public distribution system or a transporter would sell, distribute or supply kerosene under the public distribution system to any person other than the person for whom the supplies was meant. The District Supplies Officer and his inspection team had, on 11.5.2007, inspected the godown and premises of the petitioner and found stock of 7598 litres of unaccounted kerosene and 333 litres of oil; the petitioner did not have any licence or permit for purchasing the stock and he was selling the stock in public in SCA/15720/2007 3/34 JUDGMENT violation of the Kerosene Restriction On Use and Fixation of Ceiling Price Order, 1993. Similarly, for the storage of oil also, requisite licence was not obtained by the petitioner from the competent officer. After referring to the elaborate enquiries made and the confessions of the petitioner himself regarding purchase and sale of kerosene for earning illegal monthly profit of Rs.15,000/- since last two years, the impugned order stated that two cases under section 6-A of the Essential Commodities Act, 1955 were registered earlier on 14.2.2005 and 31.7.2006 in which 1525 and 75 litres of kerosene was seized and part of that stock was confiscated against which the petitioner had not preferred any appeal. After considering the facts and material placed before the District Magistrate, the impugned order was made on the grounds that detention of the petitioner was the appropriate measure for preventing him from acting in a manner prejudicial to the maintenance of supply of kerosene to the community and that there were reasons to believe that prosecution would not be sufficient because the petitioner would continue his illegal activity after being released on bail. 3. The petitioner has, through his advocate, SCA/15720/2007 4/34 JUDGMENT made an elaborate representation dated 13.6.2007 with a request to take out copies thereof and forward them to other competent authorities for their consideration. 4. By filing the first affidavit dated 24.7.2007 of Under Secretary, Department of Consumer Affairs, Food and Public Distribution, New Delhi, it is, inter alia, stated that the detention order was approved by the State Government on 7.6.2007 and report thereof was sent by them vide letter dated 12.6.2007 which was received in his department on 13.6.2007. Upon examination, it was found to be in order. Representation dated 13.6.2007 made by the advocate of detenu was received in the Central Government on 29.6.2007 and in the concerned section on 2.7.2007 through the State Government. As certain averments were required to be verified, the competent authority desired that specific comments on the averments as also para- wise comments on the representation be called for from the State Government and accordingly, they were called by letter dated 17.7.2007 which were, till then, awaited. 4.1 By affidavit dated 16.8.2007 of Joint Secretary to the Government of Gujarat, Food, SCA/15720/2007 5/34 JUDGMENT Civil Supplies and Consumer Affairs Department, it is, inter alia, stated that the order of detention passed by the District Magistrate, Porbandar was forwarded with the report forthwith and it was approved by the State Government on 7.6.2007 within the stipulated period of 12 days. Thereafter, the State Government forwarded the report to the Central Government alongwith order dated 12.6.2007 within the prescribed time-limit of seven days. Representation dated 13.6.2007 was received in Special Branch of Food, Civil Supplies and Consumer Affairs Department on 19.6.2007 and placed before the Section Officer who cleared the file on 20.6.2007 and it was placed before the Principal Secretary who cleared the file on the same day. Thereafter, the file was placed before the Hon'ble Minister of Civil Supplies on 21.6.2007 who decided to reject the representation on the same day. After receiving the file back on 22.6.2007 in the Special Branch, the detenu was informed about rejection of his representation by letter dated 22.6.2007 through the jail authority. 4.2 By filing second affidavit dated 1.10.2007, it is stated by Under Secretary, Government of India, Ministry of Consumer Affairs, Food and Public Distribution, that SCA/15720/2007 6/34 JUDGMENT representation dated 13.6.2007 was received in the department on 29.6.2007 and by the concerned section on 2.7.2007. It was observed that certain averments made in the representation required clarification from the State Government. The issues raised in the representation were relevant and material for the purpose of effective consideration. However, the State Government, while forwarding the representation, had not commented and/or responded to the specific contentions of the detenu. Therefore, clarifications were sought from the State Government by letter dated 13/17.7.2007. Since within reasonable time of almost two weeks clarifications were not received from the State Government, a reminder was sent on 30.7.2007. Then para-wise remarks were received in the Central Government on 10.8.2007. Thereafter, the representation was rejected by the Competent Authority in the Central Government on 21.8.2007. 11.8.2007, 12.8.2007, 15.8.2007, 18.8.2007 and 19.8.2007 were closed holidays. The decision of the Central Government was conveyed to the Superintendent, Central Prison, Vadodara on 22.8.2007 by telegram with a direction to convey it to the detenu. It is averred that there were large number of such representations received from various State Governments, including Gujarat, and those had to be examined in as short SCA/15720/2007 7/34 JUDGMENT time as possible so that the rights of the persons under detention were not infringed. It is alleged that the State Government has not remained co-operative in the matter of forwarding clarifications and/or details to enable him to render his decision. 4.3 Joint Secretary to the Government of Gujarat has filed another affidavit dated 4.10.2007 to, inter alia, submit that the points raised in the representation of the petitioner were pertaining to the office of District Magistrate, Porbandar and hence para-wise remarks and clarifications were sought from his office by letter dated 22.7.2007. Since within reasonable time no clarification was received from his office, a reminder was sent on 1.8.2007. Thereafter, office of District Magistrate had sent reply on 4.8.2007 which was received on 8.8.2007 and submitted for approval on 9.8.2007. Thereafter, it was forwarded to the Central Government by speed post letter dated 10.8.2007. 4.4 Collector and District Magistrate, Porbandar has submitted affidavit dated 22.10.2007 with a view to explain the time spent by him in following the procedure as required under the Act. According to him, the Central SCA/15720/2007 8/34 JUDGMENT Government, vide letter dated 17.7.2007, asked the State Government to furnish parawise comments on the representation of the petitioner. That letter was received by the State Government on 21.7.2007 and, in turn on 22.7.2007, the State Government had asked his office to furnish remarks immediately. That communication dated 22.7.2007 was received by his office on 4.8.2007 and on 4.8.2007 itself, he had sent para-wise remarks to the State Government by courier and they were received by the State Government on 8.8.2007. It was, on that basis, submitted that there was no undue delay on his part in following the procedure required under the law. 5. On the basis of the above chronology of events, it was submitted for the petitioner that the Central Government which was also an appropriate authority for considering the representation dated 13.6.2007 had, even after receipt thereof on 29.6.2007, taken 15 days in seeking clarifications from the State Government and the State Government had taken 13 days, from 22.7.2007 to 04.8.2007, in obtaining remarks from the District Magistrate for forwarding them to the Central Government, without any reasonable explanation for the delay, which amounted to violation of Article 22 (5) of the Constitution. It was also submitted that the presumption as SCA/15720/2007 9/34 JUDGMENT regards less drastic remedy of prosecuting the petitioner being insufficient, on the basis that the petitioner would continue his illegal activity after being released on bail, was a pure conjecture and revealed non-application of mind. As against that, learned A.P.P. appearing for the State Government and learned Assistant Solicitor General appearing for the Central Government, submitted that the impugned order was made in bona fide exercise of power for prevention of black-marketing by the petitioner of kerosene which was an essential commodity supplied through public distribution system and the so-called delay in considering the representation of the petitioner was duly explained and justified. The presumption about futility of criminal proceeding for prevention of prejudicial activity of the petitioner was based on knowledge and subjective satisfaction of the competent authority which may not fall within the area of judicial review, according to the submission. 6. Following judgments, with emphasis on the observations made therein, as under, were cited and discussed at the bar: (i) Rama Dhondu Borade v. V.K.Saraf, Commissioner of Police [AIR 1989 SC 1861]: SCA/15720/2007 10/34 JUDGMENT "21. True, there is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which the representation should be dealt with. The use of the words "as soon as may be" occurring in Art. 22(5) of the Constitution reflect that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention". (ii) In State of Tamil Nadu v. Vadivel [(1992) 4 SCC 496], the Supreme Court observed: "10. .....Thus, the question of any period taken in dealing with the representation has to be decided in the particular facts and circumstances of each SCA/15720/2007 11/34 JUDGMENT case and it cannot be determined on the basis of any rigid period of time uniformly applicable to all cases. A leeway has to be given in considering such representation by the Government and no inference of delay leading to the violation of constitutional mandate enshrined in Clause (5) of Article 22 can be drawn unless it shows that the authorities dealing with the representation had adopted an attitude of leisureliness, supine indifference, slackness, unduly protracted procrastination or callous attitude in considering such representation...." (iii) Division Bench of this court in Maganbhai Ukabhai Makwana v. District Magistrate, Bhavnagar [1993 (1) G.L.H. 892] observed: "16. All told, therefore, what is now required to be considered on the basis of the dates given hereinabove is whether there has been delay due to negligence, carelessness, inaction, avoidable red- tapism and unduly protracted procrastination. In other words, whether the consideration of the report after its receipt on 30th March 1992 the process for which was initiated on 16.4.1992 and completed on 20th April 1992 could be said SCA/15720/2007 12/34 JUDGMENT to be reasonable expedition.......". (iv) Kundanbhai Dulabhai Shaikh v. District Magistrate, Ahmedabad [1996 (3) GLR 314] was relied upon for the observations made therein that the Government and its officers will not give up their habit of maintaining a consistent attitude of lethargy. So also, this Court will not hesitate in quashing the order of detention to restore the "liberty and freedom" to the persons whose detention is allowed to become bad by the Government itself on account of his representation not being disposed of at the earliest. (v) In Urmila Naresh Mittal v. Union of India [1998 (2) G.L.H. 308], this Court observed: "8. Thus in light of the discussions and observations made in the aforesaid cases, the following principle is clearly discernible in the matter of orientation and approach to be followed while dealing with the cases of preventive detention: While the importance of national SCA/15720/2007 13/34 JUDGMENT economy in the context of organized smuggling activities cannot be undermined rather it has been given a prime importance, while dealing with the cases of preventive detention a balance has to be struck with regard to constitutional safeguards because the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law and at the same time care has to be taken that the purpose and the object of the Act is not defeated on the basis of a hypertechnical approach to the observance of the procedure and unless and until it is found that the right of effective representation has been invaded to an extent so as to make it defeasible, the interference with the detention would be unwarranted. (emphasis supplied) (vi) Division Bench of Bombay High Court in Rafiq Abdul Karim Merchant v. Rajendra Singh, Secretary to Government of Maharashtra [1998 Cri.L.J. 2732] made pertinent observations as under: "28. ....in the final analysis the detention order would not be vitiated on SCA/15720/2007 14/34 JUDGMENT the consideration that the representation of the detenu was disposed off belatedly but on the ground that either there was complete absence of explanation or the explanation offered was untenable and unconvincing. In other words, there may be cases where on account of satisfactory explanation a long delay in disposal of representation may not be fatal. On the converse, there may be cases where the delay in the disposal of representation may be relatively short but still the detention order would be vitiated either because there is no explanation or that offered is unworthy of acceptance". (vii) Rajammal v. State of Tamil Nadu [AIR 1999 SC 684] was relied upon for the observations made therein that merely stating that the Minister was on tour and hence he could pass orders only on 14.2.1998 was not a justifiable explanation, when the liberty of a citizen guaranteed under Article 21 of the Constitution was involved. Absence of the Minister at the Headquarters is not sufficient to justify the delay since the file could reach the Minister with utmost promptitude in cases involving the vitally important SCA/15720/2007 15/34 JUDGMENT fundamental right of a citizen. (viii) In Ahamed Nassar v. State of Tamil Nadu [(1999) 8 SCC 473], the Supreme Court observed: "8. In a given case even few days' delay may be fatal while in another set of circumstances a longer delay may still be held to be for valid reasons. Expeditious disposal of any representation only means which could be expeditiously disposed of by the authority concerned but should not be with any unexplained delay or delay through carelessness. This would depend on the facts and circumstances of each case. "11. ....The stated delay was on account of vagaries of the postal department. It is not attributable to the States. Hence on the facts and circumstances of this case, it is not possible to hold that there was any delay in the disposal of detenu's representation by the Central Government......". (ix) In Union of India v. Paul Manickam [(2003) 8 SCC 342], the Supreme Court observed: SCA/15720/2007 16/34 JUDGMENT "14. ....If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. [See N. Meera Rani v. Government of Tamil Nadu AIR 1989 SC 2027 and Dharmendra Suganchand Chelawat v. Union of India AIR 1990 SC 1196]. The point was gone into detail in Kamarunnissa v. Union of India (AIR 1991 SC 1640). The principles were set out as follows: even in the case of a person in custody, a detention order can be validly passed: (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him SCA/15720/2007 17/34 JUDGMENT from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail. "15. Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature. Blackstone called it "the great and efficacious writ in all manner of illegal confinement." The writ has been described as a writ of right which is grantable ex debito justitae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right. "16. In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and SCA/15720/2007 18/34 JUDGMENT there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. (See Rex v. Hallidey 1917 AC 260 and Kubic Dariusz v. Union of India and others AIR 1990 SC 605). But at the same time, a person's greatest of human freedoms, i.e. personal liberty, is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however, technical is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose all their meanings, are the true justifications for the laws of preventive detention. This jurisdiction has been described as a "jurisdiction of suspicion", and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of the individual liberty. (See Ayya alias Ayub v. State of U.P. and another AIR 1989 SC 364). To lose our country by a scrupulous adherence to the written law, said Thomas Jafferson, would be to lose the law, absurdly sacrificing the end to the means. No law is an end SCA/15720/2007 19/34 JUDGMENT itself and the curtailment of liberty for reasons of State's security and national economic discipline as a necessary evil has to be administered under strict constitutional restrictions. No carte blanche is given to any organ of the State to be the sole arbiter in such matters." (emphasis supplied) (x) In D.Anuradha v. Joint Secretary [(2006) 5 SCC 142], the Supreme Court observed: "19. As regards delay in disposing of the representation, this Court, as early as in 1981 observed in Ummu Saleema case that there cannot be any fixed time and the delay, if any, in disposal of the representation is to be considered vis-a- vis any prejudice that may be caused to the detenu. In para 7 of the said judgment, the following observations were made: "7. Another submission of the learned counsel was that there was considerable delay in the disposal of the representation by the detaining authority and this was sufficient to vitiate the detention. The learned counsel submitted that the detaining authority was under the obligation to adequately explain each day's delay and SCA/15720/2007 20/34 JUDGMENT our attention was invited to the decisions in Pritam Nath Hoon v. Union of India and in Shanker Raju Shetty v. Union of India. We do not doubt that the representation made by the detenu has to be considered by the detaining authority with the utmost expedition but as observed by one of us in Frances Coralie Mullin v. W.C.Khambra, 'the time imperative can never be absolute or obsessive'. The occasional observations made by this Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasis the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life, there are no invariable absolutes. Neither life nor law can be reduced to mere but despotic formulae." (emphasis supplied) (xi) In Senthamilselvi v. State of Tamil Nadu [(2006) 5 SCC 676], the Supreme Court observed: "6. ...The Minister concerned passed an order on 22.12.2005 and the order of SCA/15720/2007 21/34 JUDGMENT rejection which was passed on 27.12.2005 was issued on 28.12.2005 which was sent to the Superintendent of the Jail where the detenu was incarcerated, which was communicated to the detenu. It was received by the prison authorities and it was served on the detenu on the day it was received by the jail authority. The factual scenario indicated above indicates that the representation was dealt with utmost expedition. There can be no hard-and-fast rule as to the measure of reasonable time and each case has to be considered from the facts of the case and if there is no negligence or callous inaction or avoidable red tapism on the facts of the case, the Court would not interfere. It needs no reiteration that it is the duty of the Court to see that the efficacy of the limited, yet crucial, safeguards provided in the law of preventive detention is not lost in mechanical routine, dull casualness and chill indifference, on the part of the authorities entrusted with their application. When there is remissness, indifference or avoidable delay on the part of the authority, the detention becomes vulnerable. That is not the case at hand. It may be noted that the writ petition was filed on 22.12.2005, even before the order of rejection was served. That being so the SCA/15720/2007 22/34 JUDGMENT detenu cannot make grievance