State Of Maharashtra & Ors vs Bhaurao Punjabrao Gawande

3. The case of the appellants is that one Bhaurao Punjabrao Gawande (detenu) was running a business of transportation of petroleum products and had fleet of tankers for carrying on the said occupation. He was indulging in illegal purchase and sale of blue kerosene oil in black market since last five to six years. Certain cases were also registered against the said Bhaurao under the Essential Commodities Act, 1955 (hereinafter referred to as '1955 Act'). In view of continuous activities of Bhaurao in black-marketing of essential commodity (Kerosene), the Commissioner of Police (appellant No.2 herein), in exercise of power conferred on him by sub-section (1) read with Clause (b) of sub-section (2) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as 'the Act') directed that the said Bhaurao be detained. Grounds of detention were sought to be served to the detenu on the same day.

5. The detenu, without submitting to the order of detention and surrendering, filed Writ Petition No. 372 of 2006 in the High Court of Bombay (Nagpur Bench) for an appropriate writ, direction or order quashing and setting aside the order of detention dated July 27, 2006 being illegal, unwarranted and vitiated by mala fide. Other reliefs were also sought.

6. An affidavit in reply was filed by the Detaining Authority, inter alia, contending that the petition filed by the detenu was not maintainable at law. The detenu got the information about the order of detention, absconded himself and the order of detention could not be served upon him. The order was, therefore, affixed at a conspicuous place at the residence of the detenu on July 30, 2006 and a panchanama was drawn by the Police Inspector of Sakkardara Police Station, Nagpur. Since the detenu was not available, grounds of detention along with relevant documents also could not be served upon him. It was stated that the order of detention was approved by the State Government. Moreover, the entire proceedings of detention were submitted to the Advisory Board constituted under Section 10 of the Act as required by law. The Government decided the period of detention only after the opinion of the Advisory Board under Section 12 of the Act.

7. On merits, it was contended on behalf of the Detaining Authority that the detenu was indulging in black marketing of kerosene oil which was an 'essential commodity' and several cases had been registered against him. It was also stated that the detenu had executed a bond under the Code of Criminal Procedure, 1973 for good behaviour. In spite of all these steps, the detenu continued to indulge in black marketing activities of essential commodity and the Detaining Authority was satisfied that "with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of essential commodities to the community", it was necessary to detain him and accordingly the order was passed. It was, therefore, submitted that the petition was liable to be dismissed, particularly when the detenu absconded and the order of detention along with grounds of detention and other documents could not be personally served and could not be executed.

10. On February 12, 2007, when the matter was placed for admission hearing, notice was issued and was made returnable within three weeks. On August 13, 2007, four weeks time was sought by the detenu for filing counter affidavit. The Court, however, passed the following order;

11. Affidavit-in-reply was thereafter filed. On December 13, 2007, the Registry was directed to list the matter for final hearing in the first week of February, 2008 on a non- miscellaneous day and that is how the matter is before us.

34. An order of detention can be challenged on certain grounds, such as, the order is not passed by the competent authority, condition precedent for the exercise of power does not exist; subjective satisfaction arrived at by the Detaining Authority is irrational, the order is mala fide; there is non- application of mind on the part of the Detaining Authority in passing the order; the grounds are, or one of the grounds is, vague, indefinite, irrelevant, extraneous, non- existent or stale; the order is belated; the person against whom an order is passed is already in jail; the order is punitive in nature; the order is not approved by State/Central Government as required by law; failure to refer the case of the detenu to the Board constituted under the statute; the order was quashed/revoked and again a fresh order of detention was made without new facts, etc. CHALLENGE TO DETENTION-ORDER PRIOR TO EXECUTION

(emphasis supplied)

43. We must concede our inability to uphold the above contention. We have been taken to the judgment of the High Court impugned in the present appeal. So far as the authority of the Commissioner of Police is concerned, the High Court was satisfied that the order was passed by the authority competent to exercise the power. It was also clear that the order was passed 'under the Act' since the Detaining Authority was satisfied that the detention of the writ-petitioner was necessary 'with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of essential commodities to the community' i.e. kerosene. The grounds, in our opinion, cannot be said to be vague, extraneous irrelevant or non-existent. (In fact, the detenu absconded and grounds could not be served). It is not even alleged that the order is sought to be executed against a wrong person.

(emphasis supplied)

(emphasis supplied)

(iv) of Alka Subhash Gadia and the relief was granted.

59. The case on hand, in our considered opinion, does not fall within the category of exceptional cases and the High Court committed an error of law in setting aside the order of detention at the pre-execution and pre-arrest stage. The said order, therefore, deserves to be set aside and is hereby set aside. It is open to the authorities to execute the order of detention. It is equally open to the detenu to challenge the legality thereof on all available grounds.

60. Before parting with the matter, we may clarify that all observations made by us in this judgment are only for the purpose of deciding the legality of the order passed by the High Court and impugned in the present appeal. We may not be understood to have expressed any opinion one way or the other on the allegations and counter-allegations by the parties. It is also made clear that if after the execution of the order, the action is challenged by the detenu, the Court will decide the case strictly in accordance with law on its own merits without being inhibited by any observations made either in the decision of the High Court or in the present judgment.

61. The appeal is accordingly allowed.