Gujarat High Court
Kishorbhai Arjanbhai Bhanushali vs State Of Gujarat on 26 March, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/SCA/2156/2016 ORDER DATED: 26/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2156 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 2156 of 2016
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KISHORBHAI ARJANBHAI BHANUSHALI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR HR PRAJAPATI(674) for the Petitioner(s) No. 1
MR JAY MEHTA AGP for the Respondents No. 1,2,3
MR PY DIVYESHVAR(2482) for the Respondents No. 4
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 26/03/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. By this petition under Article 226 of the Constitution of India, petitioner - Kishorbhai Arjanbhai Bhanushali, has challenged the order dated 16.12.2013 passed by the respondent - District Magistrate, Navsari directing him to be detained under the provisions of the Prevention of the Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as "the PBM Act of 1980" for short).
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2. The said order has been passed in purported exercise of powers conferred by sub-section (1) read with sub- clause (b) of sub-section (2) of Section 3 of the said Act.
3. Brief facts giving rise to file the petition are that, the petitioner detenue Kishor Bhanushali was the retailer of the food grains and doing his business in the name of 'National Traders' at Navsari. According to report dated 28.11.2013, it was learnt that the petitioner was found in unauthorized stock of food grains, which was essential commodities like rice, wheat etc. The excess stocks as per the report alleged to have been purchased from Madhya Pradesh, whereby, the petitioner was involved in unauthorized storage and pilferage of essential commodities meant for public distribution system and thereby, acted in a manner which is harmful to maintenance and distribution of essential commodities to the public at large. After in depth inquiry made by the State Government, the FIR came to be lodged with Chikhli Police Station, Valsad for the offences mentioned therein. The said FIR was registered on 05.12.2013. The petitioner herein was arrested on 05.12.2013 and later on he was enlarged on bail. The District Magistrate, Navsari, after considering the entire material supplied by the sponsoring authority, satisfied that Page 2 of 11 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:54 IST 2025 NEUTRAL CITATION C/SCA/2156/2016 ORDER DATED: 26/03/2025 undefined with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of supplies of essential to the community, it is necessary to detain the petitioner who derived the gain from the said malpractice, which act of the petitioner defeat the provisions of the Essential Commodities Act.
4. In the aforesaid set of circumstances, by exercising powers under Section 3(1) of the PBM Act of 1980, the District Magistrate, Navsari passed detention order dated 16.12.2013 and the same was executed upon the petitioner. The District Magistrate, Navsari, after consideration the entire circumstances and the documentary evidence was of the opinion that mere registration of the FIR against the detenue would not effectively prevent him from acting in a manner prejudicial to the maintenance of supplies of food grains and further, opined that after releasing on bail, it quite possible that the detenue will continue with the illegal and antisocial activities and it is imperative for the effective measures to detain the petitioner preventing him from acting in a manner prejudicial to the maintenance of essentially commodities.
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5. The detention order dated 16.12.2013 was intimated to the State Government along with the grounds on which the order was made and the State Government has approved the order impugned.
6. Being aggrieved with the order impugned dated 16.12.2013, the present application has been filed.
7. We have heard learned counsel Mr. H. R. Prajapati for the petitioner and Mr. Jay Mehta, learned AGP for the respondent - State.
8. Mr. Prajapati, learned counsel appearing for and on behalf of the petitioner detenue, made the following submissions:
(A) That there is a delay in passing the order of detention, which is evident from the order of the detention itself as the same was passed on 16.12.2013, whereas the FIR under the provisions of the Essential Commodities Act was registered against the petitioner and others on 05.12.2013, as such there is a delay of in passing the order of detention.
That in absence of any complaint in the interregnum, the conclusion of the detaining authority that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to Page 4 of 11 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:54 IST 2025 NEUTRAL CITATION C/SCA/2156/2016 ORDER DATED: 26/03/2025 undefined the maintenance to the supplies of the commodities essential to the community has no rationality and there is no material placed before the authority to show that petitioner would indulge in future in such kind of activities and therefore, while passing the order, the authority did not apply its mind and in a mechanical manner, without any material, the order was passed.
(B) That the grounds for detention has no nexus with the expression "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as explained under Section 3 of Act of PBM 1980 and therefore, where the offence is registered under the Essential Commodities Act and the petitioner has been released on bail, the solitary offence is thus not necessarily sufficient for the action under the preventive detention.
9. In view of the aforementioned submissions, learned counsel Mr. Prajapati would submit that, the proceedings were being initiated in the year 2013 and during interregnum period nothing on record to show that the petitioner indulged in such kind of activities and therefore, the detention order dated 16.12.2013 be quashed and set aside.
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10. On the other hand, opposing the application, learned State Counsel Mr. Jay Metha, reiterating the contents of the affidavit, has contended that, after inspection the petitioner was found in the black marketing activities and he was habitual and therefore, with a view to prevent him from such activities, the detention order came to be passed and therefore, merely a passing of 10 years would not be a ground to quash the order impugned.
11. In such circumstances, it is urged that, the petitioner had acted prejudicial to the maintenance of the supplies of the commodities essential to the community and there was sufficient material before the detaining authority that in future also he would indulge in the same activities and to prevent him, the order of detention is required to be passed and based on this subjective satisfaction and on sufficient grounds, the order of detention was passed.
12. Having regard to the facts and circumstances of the present case, the issue falls for our consideration is as to whether the order of detention passed by the District Magistrate, Navsari in exercise of his power under the provisions of the PBM Act, 1980 is sustainable in law?
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13. Before adverting to the submissions, we may refer to Section 3 of the Act, which authorized the authority to pass an order of detention. Section 3 reads as under:
3. Power to make orders detaining certain persons.-- (1) The Central Government or a State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government specially empowered for the purposes of this section by that Government, 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 the commodities essential to the community it is necessary so to do, make an order directing that such person be detained.
Explanation.--For the purposes of this sub-section, the expression "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" means-
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(a) committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955 (10 of 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
(b) dealing in any commodity--
(i) which is an essential commodity as defined in the Essential Commodities Act, 1955 (10 of 1955), or
(ii) with respect to which provisions have been made in any such other law as is referred to in clause (a), with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid.
(2) Any of the following officers, namely:--
(a) district magistrates;
(b) Commissioners of Police, wherever they have been appointed, may also if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-
section.
(3) When any order is made under this section by an officer mentioned in sub-section (2) he shall forthwith report the fact to the State Government to which he Page 8 of 11 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:54 IST 2025 NEUTRAL CITATION C/SCA/2156/2016 ORDER DATED: 26/03/2025 undefined is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government:
Provided that where under section 8 the grounds of detention are communicated by the authority making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that for the words "twelve days", the words "fifteen days" shall be substituted.
(4) When any order is made or approved by the State Government under this section or when any order is made under this section by an officer of the State Government not below the rank of Secretary to that Government specially empowered under sub-section (1) the State Government shall, within seven days, report 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.Page 9 of 11 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:54 IST 2025
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14. In light of the statutory provision and considering the grounds for detention and the contention raised by the State in the affidavit-in-reply, we are of the opinion that the representation made has not been decided in a mandatory time period or in a reasonable time. The record indicates that on 08.02.2016, through RPAD the representation was being sent, however, the respondents failed to show that the same was dealt by the authority concerned. In such circumstances, there is a violation of Section 25 of the Constitution of India and on that count, order deserves to be set aside. It is relevant to note that after registration of the FIR, nothing on record that the petitioner was continued in the illegal activities affecting the distribution system of the essential commodities. It is not in dispute that the order of detention passed on 13.06.2013, whereas, after 2 years and 2 months, it was executed.
15. In light of the above discussions, we have no hesitation in quashing the order of detention on the ground as discussed above, as the detention order has become illegal for violation of Article 22(5) of the Constitution of India and accordingly, the order of detention dated 16.12.2013 is hereby quashed. The detenue, pending the application, has been released by this Court and therefore, there is no need to surrender again. Rule is made absolute accordingly.
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16. In view of order passed in main matter, no order in Civil Application and is disposed of accordingly.
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