Gujarat High Court
Amirali Badruddin Lalani Through ... vs State Of Gujarat on 26 March, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/SCA/17475/2018 ORDER DATED: 26/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17475 of 2018
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AMIRALI BADRUDDIN LALANI THROUGH NURULLA AMIRALI LALANI
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. 3
MR ANKIT SHAH(6371) for the Respondent No. 4
RULE SERVED BY DS for the Respondent No. 1,2
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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 - Amirali Badruddin Lalani, has challenged the order dated 25.09.2018 passed by the respondent - District Magistrate, Amreli 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).
2. The said order has been passed in purported exercise of powers conferred by sub-section (1) read with sub-
Page 1 of 13 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:49 IST 2025NEUTRAL CITATION C/SCA/17475/2018 ORDER DATED: 26/03/2025 undefined 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 was accorded licence of fair price shop at village: Devada, Dhari, Amreli, whereby, he was authorized to sell essential commodities like wheat, rice, sugar etc.. On the basis of the complaint by the Coordinate committee, the authority concerned inspected the shop of the petitioner and during the inspection, material irregularities on the aspect of stock and maintaining the necessary protocols, found deficient. The authority had seized the kerosene oil as mentioned in the report and the outcome of the report was to the effect that, by doing mal-practice, the essential commodities meant for the society, were being sell in open market for financial benefit. On this aspect, the criminal complaint being CR No. 61 of 2018 dated 07.09.2018 was being filed by the Executive Magistrate for the breach and violation of provisions of the Essential Commodities Act, 1955. The District Magistrate, Amreli, after considering the entire material supplied by the sponsoring authority, satisfied that 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 Page 2 of 13 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:49 IST 2025 NEUTRAL CITATION C/SCA/17475/2018 ORDER DATED: 26/03/2025 undefined 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, Amreli passed detention order dated 25.09.2018 and the same was executed upon the petitioner. The District Magistrate, Amreli, 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.
5. The detention order 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. The Central Government vide communication was also informed Page 3 of 13 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:49 IST 2025 NEUTRAL CITATION C/SCA/17475/2018 ORDER DATED: 26/03/2025 undefined along with the grounds of detention, etc.
6. Being aggrieved with the order impugned dated 25.09.2018, the present application has been filed.
7. We have heard learned counsel Mr. H. R. Prajapati for the petitioner and Mr. Jay Metha, 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 25.09.2018, whereas the FIR under the provisions of the Essential Commodities Act was registered against the petitioner and others on 07.09.2018, as such there is a delay 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 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 Page 4 of 13 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:49 IST 2025 NEUTRAL CITATION C/SCA/17475/2018 ORDER DATED: 26/03/2025 undefined 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. That the licence of fair price shop was suspended on 18.05.2018 for a period of 90 days and it was continued till the order of detention. Thus, the subjective satisfaction of the author of the order that the petitioner is likely to continue his alleged activities in near future, was not based on any material but in a mechanical manner, the order has been passed.
10. Lastly, on the aspect of delay of 10 years and in absence of any material pointing towards the Page 5 of 13 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:49 IST 2025 NEUTRAL CITATION C/SCA/17475/2018 ORDER DATED: 26/03/2025 undefined petitioner about his involvement of the black marketing activities, Mr. Prajapati, would urge that no purpose would serve by maintaining the order of detention.
11. On the other hand, opposing the application, learned State Counsel Mr. Jay Mehta, reiterating the contents of the affidavit, has contended that, during the inspection of the shop 235 fake / bogus ration cards were found and in the name of such card holders, the supply of essential commodities were sold in the open market by manipulating the accounts etc. The petitioner failed to maintain the protocol as per the check-list like the proper sign board, stock statement, certificate of scale, visit book, the licence number and name of permit holders not found on the barrels of kerosene and other books of accounts to be maintained mandatorily by the shop of fair shop.
12. 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 Page 6 of 13 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:49 IST 2025 NEUTRAL CITATION C/SCA/17475/2018 ORDER DATED: 26/03/2025 undefined grounds, the order of detention was passed.
13. 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, Amreli in exercise of his power under the provisions of the PBM Act, 1980 is sustainable in law?
14. 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 Page 7 of 13 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:49 IST 2025 NEUTRAL CITATION C/SCA/17475/2018 ORDER DATED: 26/03/2025 undefined 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-
(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;Page 8 of 13 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:49 IST 2025
NEUTRAL CITATION C/SCA/17475/2018 ORDER DATED: 26/03/2025 undefined
(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 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 Page 9 of 13 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:49 IST 2025 NEUTRAL CITATION C/SCA/17475/2018 ORDER DATED: 26/03/2025 undefined 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.
15. In light of the statutory provision and considering the grounds for detention, we may first examine the principal argument that there was a delay in passing the detention order and same vitiates the detention itself. In the facts of the present case, the authority noticed the irregularities in the stock of the food grains on 27.04.2018 . The FIR under the Essential Commodities Act as well as under the penal laws came to be lodged on 07.09.2018. The order impugned came to be passed on 25.09.2018. In the aforesaid admitted facts, it is evident that since 27.04.2018, the authorities were knowing the alleged mal-practise as well as antisocial activities affecting the supply of the commodities and despite of these facts, the authority did not initiate any proceedings and set silent and waited for long. It is relevant to note that, the complaint by Coordination Committee headed by Parliamenarian was filed and on that basis, the inspection was carried out. Thus, there is a long Page 10 of 13 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:49 IST 2025 NEUTRAL CITATION C/SCA/17475/2018 ORDER DATED: 26/03/2025 undefined gap in passing the detention order. On the issue of delay in passing the detention order, the Supreme Court in case of Saeed Zakirhussain Malik Vs. State of Maharashtra (2012) 8 SCC 223, held that, prompt action in such matter should be taken as soon as the incident as mentioned in the FIR as well as referred in the grounds for detention have taken place. Relevant para-27 reads as under:
"As regards the second contention, as rightly pointed out by learned counsel for the appellant, the delay in passing the detention order, namely, after 15 months vitiates the detention itself. 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. Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinize whether the Detaining Authority has satisfactorily examined Page 11 of 13 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:49 IST 2025 NEUTRAL CITATION C/SCA/17475/2018 ORDER DATED: 26/03/2025 undefined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned"
16. We take the notice of the admitted fact that from 25.09.2018 to till date, no any fresh complaint being registered against the petitioner. In absence of any complaint or other materials, 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 the maintenance of supplies of the commodities essential to the community has no rationality and the subjective satisfaction being arrived without any material. In such set of circumstances, we are of the view that considering the undue delay between the prejudicial activities and passing of the detention order, the detaining authority failed to examine such delay and did not assign any reasons or explanation as to why such delay has occasioned.
17. In view of the aforesaid ground and delay in disposal of representation, we are of the view that, the impugned detention order has been rendered illegal for the reason being that, there was a delay in passing detention order.
18. In light of the above discussions, we have no Page 12 of 13 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:49 IST 2025 NEUTRAL CITATION C/SCA/17475/2018 ORDER DATED: 26/03/2025 undefined 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 25.09.2018 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. Direct service permitted. Direct service permitted.
(ILESH J. VORA,J) (SANDEEP N. BHATT,J) P.S. JOSHI27/03 Page 13 of 13 Uploaded by P.S. JOSHI(HC00177) on Thu Mar 27 2025 Downloaded on : Thu Mar 27 22:11:49 IST 2025