Himatlal Amratlal Kotecha Vs. State of Gujarat and ors. - Court Judgment

B.K. Mehta, J.

1. The petitioner, who happens to be the brother of one Kan-tilal Amratlal Kotecha who is the detenu in the present case, challenges the order of detention made by the District Magistrate, Bhavnagar dated Jan. 21, 1981 seeking to detain said Shri Kanti-lal as in the opinion of the detaining authority the detenu had a disclosed tendency to commit offences Under Section 3 of the prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980. Shortly stated, the facts leading to this petition under Article 226 of the Constitution of India for appropriate writ, order and direction, are as under:

2. The detenu is an authorised dealer in kerosene for the area of Bhavnagar and Amreli district, except Bhavnagar city and Bhavnagar taluka, The detenu holds licences for dealing in kerosene and light diesel oil and for that purpose he has entered into an agreement with the Indian Oil Corporation Ltd. on Mar. 21, 1968. It is the grievance of the detenu that though no complaint was received against him about any mal-practices having been indulged into by him nor any complaint received by the Indian Oil Corporation or the authorities in that behalf, while he was resting at Damnagar after the treatment he received for his heart ailment by Dr. R.D. Koshiya a Consulting Physician and Heart Specialist, during the period between 12th Jan. and 21st Jan. 1981. he was told by Police Sub-Inspector one Shri Kadari on Jan. 22, 1981 in the afternoon at about 2.30 p. m. that there is a warrant against him and he should, therefore, accompany the said Police Sub-Inspector since he was required by the District Magistrate, Bhavnagar. On his expressing his inability in view of his ailment, it is his grievance that the said police Sub-Inspector posted two police constables at his residence at Damnagar so as to restrict his movements. This was done, according to the detenu, without showing any communication or alleged warrant against him. As a sequel to the posting of two police constables at his residence, there was recurrence of heart-attack to the detenu and he was again required to be rushed to Rajkot and admitted to the Nursing Home of Dr. Tanna on Jan 23, 1981. It is his grievance that even when he was being taken to Rajkot, two police constables were directed to accompany him and they were posted at the Nursing home of Dr. Tanna which is near Chaudhari High School at Rajkot. The detenu, apprehending that there would be his arrest, moved this Court' for anticipatory bail Under Section 438 of the Criminal P.C. On his application, the learned single Judge taking up criminal matters V.V. Bedarkar J. issued Rule and made it returnable on Jan. 23, 1981 and directed that he should not be arrested till further orders were made in that behalf. It is his grievance that the Station Officer incharge of the concerned Police Station at Bhavnagar refused to accept the writ of this Court which was therefore required to be sent by registered post to the District Police Superintendent, Bhavnagar.

3. On the returnable date, that is Jan, 30, 1981, the Public Prosecutor and the Assistant Government Pleader appearing before the learned single Judge on behalf of the State declared before the learned single Judge that the petitioner before him, namely, Kantilal Amratlal Kotecha was already detained by the impugned order bearing the date Jan. 21, 1981 which was served on him while he was being treated in the Nursing Home of Dr. Tanna in the morning of Jan. 26, 1981. He was furnished with the grounds for his detention on Jan. 30, 1981.

4. The gist of the grounds is to the effect that the detenu has arbitrarily sold away and disposed of the quota of kerosene allotted to him for the month of Sept. 1980 as clearly admitted by him in his report of compliance submitted to the District Supplies Officer vide his report of Oct. 1, 1980 and, therefore, it is sufficient for indicating that the detenu was prone to commit offences Under Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980. It is this order which has been challenged by this petition.

5. We are of the opinion that this petition should be allowed and the impugned order of detention should be quashed and set aside obviously for the following reasons:

6. The District Magistrate, Bhavnagar, who has made this impugned order, has totally failed to appreciate the basic concept underlying detention orders made under the prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, which are preventive in nature and not punitive and these orders are to be made on genuine satisfaction having been reached by the detaining authority Under Section 3 that the person is required to be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. What is acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community has been defined clearly by the Explanation to Section 3 of the said Act. It means that the person has committed or is instigated to commit any offence punishable under the Essential Commodities Act, 1955 or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in any commodity essential to the community, or dealing in any commodity which is an essential commodity as defined in the Essential Commodities Act, 1955 or regarding which provision has been made in any other corresponding law with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of the said Act. It clearly appears from the impugned order that the District Magistrate is labouring under the misapprehension that Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 is a section which punishes persons for some offences. It is desirable that the District Magistrate, Bhavnagar, who is the detaining authority in this case, at least disabused his mind about this misapprehension as to the correct legal position. We are of the opinion that the impugned order suffers from a very serious infirmity of non-application of mind by the detaining authority in as much as the activities which have been defined by Explanation to Section 3 of the said Act, which may amount to committing any offence under the Essential Commodities Act 1955 or any other corresponding law or dealing in any commodity regulated by the said Acts with a view to making gain in any manner so as to defeat the purpose of the said Act have not been even faintly suggested in these grounds. The impugned order is, therefore, liable to be struck down for the aforesaid two reasons only. However, we have attempted to look into the facts of the case for finding out as to what was the prejudicial activity about which the detaining authority felt himself compelled to detain the detenu so as to prevent him from indulging in the so-called prejudicial activities in future. It appears that the District Supplies Officer had given some directions to the detenu for supply and distribution of the kerosene to retail dealers in kerosene in the city of Bhavnagar and in towns within the limits of Bhavnagar taluka. The detenu was allotted his fixed quota of 312 kilo litres of kerosene for the month of Sept. 1980 by the Indian Oil Corporation having regard to the position of demand and supply in the area of operation of the detenu which, it should be recalled, was Amreli and Bhavnagar districts, except Bhavnagar city and Bhavnagar taluka. The District. Supplies Officer directed the detenu to distribute the quota allotted to him for the month of Sept. 1980 amongst the retailers within the city of Bhavnagar and Bhavnagar taluka. The detenu had in fact received 314.5 kilo-litres of kerosene as against the allotted quota of 312 kilo litres. It is an admitted position that he distributed the entire quota amongst the retailers within the Bhavnagar taluka and his area of operation namely part of Bhavnagar district and Amreli district. It appears, though it is not clear from the grounds that the Civil Supplies Authorities which must be the sponsoring authority as far as the proposal of detention of the present detenu is concerned, had some grouse against the detenu inasmuch as he did not carry out the directions for distribution of kerosene to the retailers in Bhavnagar city. This distribution, according to the detaining authority, as stated in the grounds, was arbitrary. It is only on this short ground that the impugned detention order is made. Now it is an admitted position that the detenu was making compliance report about the directions of the District Supplies Officer from time to time after the quota allotted to him was distributed and accordingly he had also so far as the quota of Sept. 1980 was concerned, made his compliance report to the District Supplies Officer on Oct. 1, 1980. As a matter of fact it is this report on which reliance has been placed in the grounds for detention. If this compliance report had been received by the authority as back as on 1st Oct.1980,there is no reason why there was, delay in detaining him by making impugned order on Jan. 21, 1981 and serving him five days thereafter, that is. on Jan. 26, 1981. This delay is again not explained in any manner whatsoever, by either the detaining authority or the sponsoring authority, a further fact which is to be noted in this connection is that after the distribution of the quota of Sept. 1980, which has been alleged to be arbitrary and for which the detaining authority has been satisfied Under Section 3 of the prevention of Blackmarket-ing and Maintenance of Supplies of Essential Commodities Act, 1980, to detain the present detenu, it was thought fit by the Civil Supplies Department to extend his licence which had expired on 31st Dec. 1980 for a period of three years and in consequence of this licence to supply him further quota for the period, subsequent to the alleged objectionable activity, comprising of the months of Oct., Nov. Dec. 1980 and Jan.1981. We are of the opinion, to say the least, that the detaining authority has acted in a casual manner without being genuinely satisfied on application of mind to the relevant facts.

7. The result therefore, is that the impugned order should be quashed and set aside and it is directed that the detenu should be set free immediately so far as these activities are concerned. The detenu is consequently released of the ', undertaking which he has given to this Court for restricting his movements in the Nursing Home of Dr. Tanna during the pendency of the present proceedings. Rule is made absolute accordingly with no order as to casts.