Judgment:
Sanju Panda, J.
1. In this habeas corpus petition challenge has been made to the order of detention dated 25.11.2008 passed by the District Magistrate & Collector, Bargarh, opposite party No. 2 under Section 3(1) of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereafter referred to as 'the Act').
2. The brief facts giving rise to this habeas corpus petition are that during surprise check on 28.8.2008 at 11.30 P.M. in the premises of the petitioner i.e. M/s. Pooja Industries at village Kadalimunda within Barpalli P.S. in the district of Bargarh it was found that kerosene was being converted by chemical process to look like diesel. Two oil tankers were parked inside the industries. In one tanker, 8920 litres of blue dyed kerosene and in the other, about 12120 litres of blue dyed kerosene were uploaded to the processing plant. Regarding the said fact, an FIR was registered against the petitioner by the Vigilance Department and the investigation was carried out. Investigating Officer reported that the petitioner was illegally procuring kerosene meant for sale through Public Distribution System and converting the same in his fabricated industries and the converted kerosene was being sold to different petrol pumps to adulterate diesel. Apprehending arrest in Vigilance G.R. Case No. 43 of 2008, petitioner approached this Court under Section 438 Cr.P.C. in BLAPL No. 11976 of 2008 which was allowed on 29.8.2008 giving him liberty to surrender before the learned C.J.M., Sambalpur in connection with the aforesaid case. It was further directed that he shall be admitted on bail on such terms and conditions as the learned C.J.M. would deem fit and proper including a condition to furnish cash security in accordance with law in the interest of justice. Accordingly, petitioner surrendered in connection with the aforesaid case on 1.10.2008 and on furnishing bail bond of Rs. 50,000/- with two sureties he was released.
3. While the matter stood thus, on 28.11.2008 petitioner was arrested under the Act. The order of detention under Sections 3(1) and 3(2) of the Act was passed on 25.11.2008 by opposite party No. 2 against the petitioner on the grounds that:
the petitioner who is proprietor of M/s. Pooja Industries, Kandalimunda has been running a plant in the above named industries to change the colour of blue dyed kerosene which has been detected by the Vigilance squad and staff of Civil Supplies, Bargarh on 28.8.2008/29.8.2008 night. Two oil tankers having 12.120 litres and 2010 litres of blue dyed kerosene were detected in course of the said raid. No document was furnished in connection with the procurement of the huge quantity of blue dyed kerosene. The transit pass, challan, invoice and consignment note were seized from the driver of the vehicle who stated that those documents were given to him by the petitioner and the petitioner has escaped from the spot on arrival of vigilance raiding party and the petitioner's employees available in the factory were unable to produce any document before the raiding party and they stated that the documents were available with the petitioner. Petitioner is not a licencee to deal in kerosene. Thus, the petitioner has violated Clause-3 of the Orissa Public Distributions System (Control) Order, 2002 to deal with essential commodities, meant for public distribution. In the year 2005 (15.2.2005) the Inspector of Supplies (Procurement) also detected 1450 of litres of blue dyed kerosene from the petitioner's industries and the petitioner had admitted to be the owner of the seized kerosene vide petitioner's statement dated 15.2.2005. Misc. Case No. 11 of 2005 under Section 6A of the E.C. Act, 1955 was initiated against the petitioner for contravening the OPDS (Control) Order, 2002 and the report under Section 7 of the E.C. Act, 1955 was submitted against the petitioner in the Court of J.M.F.C, Barpali. The seized article was confiscated to the State Government vide order dated 21.7.2005. In the same year during December, 2005 petitioner had been caught by the vigilance squad for hoarding 4800 litres of blue dyed kerosene by violating Clause-3 of the OPDS (Control) Order, 2002 from the premises of Pooja Industries. In the said case charge sheet has already been filed and the said case is subjudice. The seized 4800 litres of blue dyed kerosene had been confiscated to the State Government by order dated 12.7.2006. Therefore, judging the aforesaid conduct, the detaining authority was satisfied that the petitioner is in habit of committing similar offences time and again. It was apprehended that the petitioner is also likely to continue committing offences under Essential Commodities Act, 1955 and deal with essential commodities like kerosene which is meant for Public Distribution System with a view to make personal gains, in any manner, which may directly or indirectly defeat or tends to defeat the provision of Essential Commodities Act, 1955 and orders were issued thereunder.
In the said grounds of detention, it was also indicated that the petitioner was at liberty to make any representation to the Government or to the Government of India in the address of the Secretary, Ministry of Food & Civil Supplies (Department of Civil Supplies) and also to the Advisory Board, if he so desired.
4. The learned Counsel appearing for the petitioner submitted that though the order of detention was passed on 25.11.2008, the petitioner was taken into custody on 28.11.2008. He filed a representation on 3.12.2008 to the State Government but the State Government did not take any prompt action thereon after lapse of 14 days. On 17.12.2008, the said representation to revoke the order of detention and for temporary release was rejected. Opposite party No. 2 on 11.12.2008 intimated the petitioner that his case had been referred to the Advisory Board and the date was fixed to 18.12.2008 and he was directed to submit his representation, if any, before the Advisory Board by 15.12.2008. Accordingly, petitioner made a representation in writing to the Advisory Board within the time. As nothing has been intimated to the petitioner about the decision taken by the Advisory Board, ha has challenged the detention order on the grounds that the order of detention has been passed on vague grounds that there has been non-application of mind, unexplained delay of three months in passing the order of detention and failure on the part of the detaining authority to show proximity between the activities and order of the detention, the nexus between the alleged prejudicial activities and detention was snapped, non-compliance of the mandatory provision as required under Section 3(4) of the Act has been reported to the Central Government within the time stipulated, delay in serving the detention order and of its execution, delay in disposal of the representation about 14 days by the State Government and that the order of confirmation does not contain whether they have perused the grounds of detention passed by the detaining authority and the documents were not supplied to him etc.
5. The District Magistrate & Collector, Bargarh, Opposite party No. 2 has filed the counter affidavit stating therein that the State Government on 1.12.2008 confirmed the detention order made by him. The confirmation order was served on the petitioner on 8.12.2008 through the Assistant Jailor of Sub-Jail, Bargarh. Petitioner made a representation to the State Government on 3.12.2008 and the same was rejected by the State Government on 17.12.2008. The petitioner made a representation before the Advisory Board on 18.12.2008. The Advisory Board submitted its report to the State Government. The State Government after going through the said report accepted the same and confirmed the detention order dated 25.11.2008. The said confirmation order of the State Government was served on the petitioner on 27.1.2009. It was specifically stated that Section 11 of the Act does not provide that a decision taken by the Advisory Board should be provided to the detenu and no specific time limit is provided under the Act for passing the order of detention between the activities and the order of detention. All the relevant documents were supplied to the petitioner along with the grounds of detention. Further it was contended that admittedly the petitioner is not a dealer under OPDS (Control) Order, 2002 or 2008. He was in possession of huge quantity of blue dyed kerosene and the said article was hoarded for personal gain which affected smooth supply of essential commodity like kerosene to the common consumer. Therefore, opposite party No. 2 accepted the petitioner as a black-marketer and proceeded accordingly giving detailed reasons for the satisfaction of the authority to detain the petitioner under the Act. Keeping in view the previous conduct of the petitioner, opposite party No. 2 has a reasonable belief that even after release on bail, the petitioner may indulge himself in committing similar offences. However, in the counter affidavit opposite party No. 2 did not state anything as to whether the State Government reported the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government, have a bearing on the necessity for the order, as required under Section 3 of the Act.
6. From the above facts, it appears that the representation of the petitioner was lying with the authority from 3.12.2008. The counter affidavit filed by opposite party No. 2 does not reflect anything as to whether the order of detention which was confirmed by the State Government together with the grounds on which the order has been made and such other particulars as in the opinion of the Government, have a bearing on the necessity for the order was communicated by the State Government to the Central Government within the period of seven days as per the requirement of the law. Opposite party No. 2 has also not stated anything that the Central Government has considered the case of the detenu as required under law. No communication has yet been made by the Central Government either to the State Government or to the detenu.
7. The apex Court in the case of T.A. Abdul Rahman v. State of Kerala and Ors. reported in : AIR 1990 SC 225 interfered with the ground of delay and held as follows:
The question whether the prejudicial activities of a person-necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinize whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the casual connection has been broken in the circumstances of each case.
12. Similarly when there is unsatisfactory and enexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.
8. Therefore, when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority with regard to necessitating detention of the detenu with a view to preventing him from acting in a prejudicial manner. Each case is to be decided on the facts and circumstances appearing as to whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation for such delay and the Court has to investigate whether the unexplained delay, whether short or long, has vitiated the order of detention.
9. In the present case, admittedly we find that the petitioner has been detained by the impugned order dated 25.11.2008 on account of the act of black-marketing of blue dyed kerosene/converting the same to diesel by using chemical during the month of August, 2008. The detention order was passed in the month of November, 2008. In the grounds of detention nothing has been mentioned whether the petitioner was indulged in any further activities during the months of September, October, November, 2008. Criminal case has already been initiated against the petitioner. The detention order was passed on the subjective satisfaction of that act without anything more. Therefore, in the absence of any other incident after August, 2008 to show that the petitioner was still indulging in black-marketing of blue dyed kerosene, we have doubt about the genuineness of the subjective satisfaction of the District Magistrate, Bargarh when the impugned order of detention was passed to prevent the petitioner to defeat the provision of OPDS (Control) Order, 2002 or 2008 and from acting in any manner prejudicial to the maintenance of supplies of essential commodities.
10. Though Union of India was implead as opposite party No. 4 in this case and notice was issued, they have not filed any counter affidavit.
11. The maximum period of detention as per Section 13 of the Act is six months from the date of detention, if the action has been confirmed on the report of the Advisory Board by the State Government as provided in Section 12 of the Act.
In view of the above, it is not necessary for us to deal with the other contentions raised by the petitioner regarding delay in consideration of the representation of the petitioner by the State Government.
12. For the aforesaid reasons, the impugned order dated 25.11.2008 passed by the District Magistrate, Bargarh and the order of the State Government dated 17.12.2008 confirming the order of detention are quashed. The petitioner will be set at liberty forthwith if his detention is not required in connection with in any other criminal case.
The writ petition is accordingly allowed.
I.M. Quddusi, J.
13. I agree.