Gujarat High Court
Rajeshbhai Manubhai Tank vs State Of Gujarat on 21 September, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/9294/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9294 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 9358 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 9511 of 2020
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RAJESHBHAI MANUBHAI TANK
Versus
STATE OF GUJARAT
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Appearance:
MR HB CHAMPAVAT(6149) for the Petitioner(s) No. 1
MR RJ GOSWAMI(1102) for the Petitioner(s) No. 1
MR SOAHAM JOSHI, AGP for the Respondent-State
for the Respondent(s) No. 1,2
NOTICE UNSERVED(8) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 21/09/2020
ORAL ORDER
1. Heard learned advocate Mr. R.J. Goswami, learned advocate Mr.Zubin Bharda appearing for learned advocate Mr. Kishan H. Daiya for the respective petitioners and learned Assistant Government Pleader Mr. Soaham Joshi for the respondents-State through video conference.
2. Rule, returnable forthwith. Learned AGP Mr.Joshi waives service of notice of rule on behalf of the respondents - State.
3. All these matters are arising out of the Page 1 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER similar issue of pre-detention and therefore, the same are heard analogously and would be disposed of by this common order. For the sake convenience, Special Civil Application no.9294 of 2020 is treated as a lead matter.
4. In Special Civil Application no.9294 of 2020 the petitioner has prayed for the following reliefs.
"(A) To allow this application;
(B) To issue a writ of certiorari or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the order of detention being PRT/VBD/TPS/PBM/Case No.1/ATK/01/2020 passed by the respondent authority dated 26.07.2020 under the provisions of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980;
(C) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directing the respondent no.2 not to execute the order of detention being PRT/VBD/TPS/PBM/Case No.1/ATK/01/2020 passed by the respondent authority dated 26.07.2020 under the provisions of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980;
(D) Pending admission, final hearing and disposal of this petition be pleased to stay further operation, implementation and execution of the order of detention being PRT/VBD/TPS/PBM/Case No.1/ATK/01/2020 passed by the respondent authority dated 26.07.2020 under the provisions of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980;Page 2 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER
(E) To pass any such orders that may be though just and proper, in the facts and circumstances of the present case;"
5. The brief facts of the case are that the petitioner- RAJESHBHAI MANUBHAI TANK is the proprietor of one Shri Swaminarayan Trading company and is doing retail business of grains and pulses. The firm of the petitioner is having Udyog Aadhar Registration no.GJ01D0011161.
5.1. It is the case of the petitioner that a complaint was lodged with Dabhoda Police Station, District Gandhinagar being F.I.R. No.11216004200075 of 2020 on 12th March 2020 for the offences under Sections 406, 409, 420, 114 of the Indian Penal Code on the basis of the information of first informant namely, Kaushikbhai Arunbhai Shikari, who is serving as a Deputy Mamlatdar, Supplies (Purvatha) at Mamlatdar Office, Gandhinagar. The said FIR also includes the name of the petitioner of Special Civil Application no.9358 of 2020 and Special Civil Application no.9511 of 2020 as accused persons.
5.2. The petitioner was arrested on 13th March 2020 and remanded to police custody and after that he was released on regular bail by the District and Sessions Court, Gandhinagar. The petitioner was also served with a notice dated Page 3 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER 07th/11th March 2020 under Section 6-A of the Essential Commodities Act. The petitioner filed reply to the said notice on 12th March 2020. According to the petitioner, the said show cause notice was issued also to show cause as to why the action should not be taken against him for violation of the Essential Commodities Act as well as the order of 1977.
5.3. Thereafter, the petitioner in his reply dated 12th March 2020 submitted that the petitioner has purchased the goods from Punjab and Haryana and also provided the purchase bills of the Food Corporation of India for purchase made by him under open market sale.
5.4. It appears that thereafter, petitioner received another show cause notice dated 2nd July 2020 issued by the respondent no.2, wherein the petitioner was asked to show cause as to why action should not be taken under the order of 1977 under Essential Commodities Act, as well as the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (for short "Black Marketing Act"). The petitioner submitted his reply on 9th July 2020 and thereafter preferred this petition on 27th July 2020 on apprehension that the detention order would be passed against the petitioner Page 4 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER under the provisions of the Black Marketing Act.
6. This Court issued notice on 13th August 2020 and pursuant to the notice, the respondents filed an affidavit-in-reply placing on record the detention order dated 26th July 2020 passed by the District Magistrate, Gandhinagar against the petitioners of all the three petitions along with the documents relied upon by the respondents in support of the detention order.
7. Learned advocate Mr. Goswami submitted that this is the first and only solitary offence of the petitioner and therefore, the detention order could not have been passed against the petitioner for alleged breach of the various provisions of the Essential Commodities Act.
7.1 Learned advocate Mr. Goswami further submitted that the goods which have been seized are from the godown of the petitioner and in reply to the show cause notice, the petitioner has explained that the goods were purchased from Punjab by producing necessary bills, transport duty etc., before the authority. It was also submitted that the goods were purchased from the Food Corporation of India in auction and therefore, the allegations leveled against the petitioner are without any basis. He therefore, Page 5 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER relied upon the decision of Supreme Court in case of Additional Secretary, Government of India v. Alka Subash Gadia reported in (1992) Suppl. SCC 461 and submitted that the case of the petitioner falls within the exception no. 3 and 4 of the said judgment, and for such submission he relied upon the para-31 of the said judgment, which reads as under :
"31. It is clear that the Court was also of the opinion that in some genuine and exceptional cases, power can be exercised by the Courts to interfere with the detention order even at the pre-execution stage. However, the detenue cannot claim such exercise of power as a matter of "right" and it is purely a discretion of the Court, which has to be exercised judicially on well settled principles. This is so stated in the following words:
32...Thirdly, in the rare cases where the detenue, before being served with them, learns of the detention order and the grounds on which it is made, and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the pre-
execution stage, of course, on the very limited grounds stated above. The Court no doubt even in such eases is not obliged to interfere with the impugned order at that stage and may insist that the detenue should first submit to it. It will, however, depend on the facts of each case. The decisions and the orders cited above show that in some genuine cases, the Courts have exercised their powers at the pre-execution stage, though such cases have been rare. This only emphasises the fact that the courts have power to interfere with the detention orders even at the pre-execution stage but they are not obliged to do to not will it be proper for them to do so save in exceptional cases.
Page 6 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDERMuch less can a detenue claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well-settled principles."
7.2. Learned advocate Mr. Goswami thereafter, submitted that on perusal of the detention order, which is placed on record by the respondents, it appears that the same is without any basis or without there being any material on record so as to enable the respondents to come to the conclusion that the petitioner is likely to commit any black marketing as per the provisions of the Black Marketing Act. It was submitted that the petitioner has produced all the bills of the goods purchased by him and accordingly, the authority without application of mind only on the basis of assumption and presumption has passed the detention order of the petitioner.
7.3. Learned advocate Mr. Goswami submitted that as per the decision of the Division Bench of this Court, in case of Mahendrasinh Mangalsinh Jadeja v. State of Gujarat and others in Letters Patent Appeal no.1495 of 2013, the detention order is required to be quashed and set aside as the power of the High Court under Article 226 of the Constitution of India are unfettered and untrammeled so as to protect the citizens under Page 7 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER the Constitution. It was also submitted that the detention order can be considered at a pre- execution stage so as to protect the citizen from unnecessarily being detained, if ultimately the detention order is likely to be quashed and set aside. He also relied upon the decision in case of Subhash Popatlal Dave Vs. Union of India reported in (2012) 7 SCC 533 as well as decision in case of Dipak Bajaj Vs. State of Maharashtra reported in (2008) 16 SCC 14.
7.4. He also relied upon the decision of this Court in case of Chandubhai Laxmanbhai Topiya v. State of Gujarat in Special Civil Application no.21058 of 2019 rendered on 6th January 2020 and submitted that the order of detention is passed only on the basis of the subjective satisfaction of the detaining authority and such subjective satisfaction is to be arrived only on two points i.e. veracity of facts imputed to the person to be detained and on the prognostication of the detaining authority that the person concerned is likely to indulge again in the same kind of notorious activities. He submitted that on perusal of the detention order, neither of the twin conditions are satisfied as there is no valid basis for passing such order and secondly, the apprehension on part of the detaining authority that the petitioner would continue the Page 8 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER activity of alleged black marketing is also without any basis, as there is no offence alleged to have been committed by the petitioner in the four months period from the date of alleged incident, which had happened in March 2020 till passing of detention order in July,2020. Mr. Goswami further submitted that after the filing of the FIR in March 2020, for the first time, the notice for detention was issued on 2nd July 2020 and according to Mr. Goswami, such notice is not required to be issued to a person under the provisions of the Black Marketing Act and the issuance of such notice itself is illegal and therefore, consequential detention order which is passed is also not in accordance with law. He further submitted that there is a delay in passing the detention order of about four months, which would defeat the very purpose of the detention order.
7.5. With regard to the petitioner of Special Civil Application no.9358 of 2020 is concerned, it was submitted by Mr. Goswami that the petitioner Rajubhai Mangilal Teli is only a transporter, who has been awarded the contract by the Government to transport the goods from the government godown to the fair price shop. It was submitted that there is nothing on record to point-out the involvement of the petitioner, who Page 9 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER was a transporter for the alleged offence as the goods which was found was from the owner of Swaminarayan Traders and the petitioner has no role to play in the transportation for the goods from the government godown to the fair price shop. It was also submitted that only because the truck of the petitioner was found standing near the godown of the Swaminarayan trading company, the petitioner has been falsely roped in for the alleged offences and the detention order is passed only because of the name of the petitioner is disclosed in the FIR for the alleged offences.
7.6. With regard to the petitioner in Special Civil Application no.9511 of 2020 is concerned, learned advocate Mr.Zubin Bharda along with learned advocate Mr.Kishan Daiya submitted that the petitioner Mangilal Premji Teli is only a sub-contractor of the main contractor Mr.Rajubhai Mangilal Teli and he has no connection whatsoever with Rajubhai Mangilal Teli. It was submitted by Mr.Bharda that Mr.Mangilal Premaji Teli has only provided the trucks used by contractor -Rajubhai Teli for the purpose of the contract which was awarded to him by the Government for transportation of the goods from the Government godown to the fair shops.
Page 10 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER7.7. Inviting the attention of the Court to the detention order it was submitted by Mr. Bharda that there is no allegation against the petitioner so as to pass the detention order nor there is any basis for which such order could have been passed by the detaining authority. It was submitted that none of the twin conditions, which is required to be followed before passing the detention order are fulfilled. He adopts the arguments made by learned advocate Mr. Goswami in addition to the distinguishing features qua the petitioner, who is a sub-transporter.
7.8. It was further submitted that on perusal of the detention order, the petitioner is roped in only on the ground that he is a transporter, whereas in fact, the petitioner is not a transporter, but he is a sub-contractor of the main transporter. It was further submitted that the affidavit of the petitioner is wrongly interpreted by the detaining authority so as to rope in the petitioner as the petitioner is only to get the transportation charges or the hire charges as per the contract whereas the driver of the truck is required to transport the goods as per the instructions of transporter Rajubhai Mangilal Teli.
8. On the other hand, learned Assistant Page 11 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER Government Pleader Mr. Soaham Joshi submitted that the order of detention is passed against the petitioners after taking into consideration the material available on record and after considering the probative value of such material. He invited the attention of the Court to the observations made in the detention order to point-out that there is complete subjective satisfaction of the detaining authority and no interference is required to be made by this Court while considering the detention order which is passed by the detaining authority. He referred to the observations made on the basis of material before the detaining authority to the effect that the petitioners were indulging in the process of black marketing so as to sale the goods meant for fair price shops in the open market. He submitted that there was a seizure of different items as stated in the detention order amounting to Rs.14,02,650/-. He also invited the attention of the Court to the findings in the detention order to the effect that the goods of rice, sugar, chana dal, etc., was found in the bags having stamp of State of Gujarat, Food and Civil Supplies Department, Public Distribution Services. It was also pointed-out as referred to in the detention order that at the time of inspection carried-out by the authority, which also include videography, it was found the Page 12 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER illegal activities of converting the subsidized goods so as to sale such goods in the open market by transferring such goods to other bags. It was submitted by Mr. Joshi that in view of such material available on record, the detaining authority has arrived at subjective satisfaction and therefore, no interference is required to be made while exercising the extraordinary jurisdiction under Article 226 of the Constitution of India. He further submitted that the reliance placed by the learned advocates for the petitioners on the decisions of this Court are not applicable as the facts were totally different and facts as emerging from the record as recorded in the detention order is required to to be considered from the point of view of the detaining authority, who has exercised subjective satisfaction on the basis of material available with him. It was also pointed-out that the material available on record clearly shows that the petitioners have indulged in the process of selling the goods meant for fair price shop in the open market and therefore, there is a valid apprehension on the part of the detaining authority to detain the petitioners so as to prevent the black marketing of the goods meant for fair price shops.
9. Having considered the rival submissions and Page 13 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER having gone through the materials on record, it appears that it is not in dispute that the petitioner of Special Civil Application no.9294 of 2020 is doing the business of trading of grains and pulses whereas the petitioners of Special Civil Application no.9358 of 2020 and Special Civil Application no.9511 of 2020 are the transporters and all the petitioners are accused for the offences under Sections 406, 409, 420 and 114 of the Indian Penal Code in connection with the FIR No.11216004200075 of 2020 filed against them for the purpose of criminal breach of trust and cheating on the allegations that the petitioners were selling the goods meant for fair price shop in the open market.
10. Therefore, notice was issued on 11th March 2020 for the alleged breach of provisions of Section 6A of the Essential Commodities Act, as well as the notice dated 2nd July 2020 was issued wherein it is also mentioned that why action should not be taken against the petitioners under the Black Marketing Act. It is true that there is no provision under the Black Marketing Act to issue notice to show cause as to why the petitioner should not be detained, however, when such notice was issued, there is no contrary provision of law that no notice should be issued putting the petitioner on guard as to why he Page 14 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER should not be detained or to seek an explanation from the petitioner.
11. The petitioner on 9th July 2020 has filed his reply to such show cause notice date 2nd July 2020 wherein, he has pleaded total ignorance with regard to the allegations made therein and has given absolutely vague reply contrary to the reply given by the petitioner on 12nd March 2020 pursuant to the notice issued on 11th March 2020. In the reply dated 9th July 2020, the petitioner has simply stated that he was not aware about stock being unloaded from the vehicle, which was seized at the place of the petitioner and the driver had only come to meet some relative at the place of the petitioner. The petitioner has thus, given absolutely vague reply to the show cause notice dated 2nd July 2020 issued by the authority.
12. On perusal of the impugned detention order, as it is produced by the respondent on record, the same is required to be considered on merits in view of the decision of the Apex Court in case of Dipak Bajaj (supra). On perusal of such order, it appears that there is sufficient material on record for the detaining authority to come to subjective satisfaction that the petitioners are likely to commit activity of Page 15 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER black marketing and so in order to prevent the petitioners from committing such activity, the detention order is required to be passed. It is recorded by the detaining authority in detail the modes operandi of the petitioners to siphon off the goods meant for fair price shops so as to sale at higher prices in the open market. It was found during the course of investigation that the petitioners were indulging in illegal activities of shifting the goods from the bags of the Government, containing the marking of the Government, to the other bags for selling the goods to the flour mills. The detaining authority has also referred to the video recording of such activity of the petitioners. Thus, there is subjective satisfaction arrived at by the detaining authority for passing the impugned order and therefore, no interference is required to be made while exercising the extraordinary jurisdiction under Article 226 of the Constitution of India.
13. Reliance placed by the learned advocate for the petitioners on the decision of Apex Court in case of Alka Subash Gadia (supra) would also not come to help of the petitioners as there is sufficient material on record to pass the impugned detention order so as to see that the petitioners are prevented from indulging in the Page 16 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER activity of black marketing. It is also pertinent to note that the petitioners are avoiding the service of the detention order for which the respondent authority has already initiated the proceedings under Section 7 of the Black marketing Act. Only because the petition is pending before this Court and there is no stay as far as the petitioners of Special Civil Application no.9358 of 2020 and Special Civil Application no.9511 of 2020, they have avoided the service of the detention order. Thus, this conduct of the petitioners is also required to be taken into consideration.
14. With regard to the reliance placed on the decision by the learned advocate for the petitioners in case of Mahendrasinh Mangalsinh Jadeja (supra) and Chandubhai Laxmanbhai Topiya (supra) would also not come to help the petitioners because now, the matter is considered on merits as the detention order is passed and produced on record for perusal whereas in both the cases, the Court did not examine the detention order on merits. In such circumstances, the decisions of this Court relied upon by the learned advocate on are also not applicable to the facts of the case.
15. It is also pertinent to note that the Page 17 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER detaining authority considering the material on record has arrived at the conclusion forming a subjective satisfaction that the petitioners are likely to indulge in black marketing and therefore, the detention order is passed by the detaining authority so as to prevent the petitioners from indulging in such activity. The contention raised on behalf of the petitioner that the detention order is passed after the delay of four months is also not required to be considered in the present Covid-19 pandemic situation. The authorities i.e. Collector is bound to be engaged in pandemic situation and it is not likely that the petitioner would continue to be engaged in black marketing in lock-down situation and therefore, in peculiar facts of this case, the submissions made by the learned advocate for the petitioners is also not tenable as after issuing the notice on 2nd July 2020, the detention order is passed on 26th July 2020 which cannot be said to be passed after considerable delay on the part of the detaining authority.
16. Learned AGP Mr. Joshi also relied upon the decision of Division Bench of this Court in case of Mukeshbhai Versibhai Desai through his brother Bharatbhai Versibhai Desai v. State of Gujarat in Letters Patent Appeal no.108 of 2020. However, the said decision is passed at the pre-detention Page 18 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021 C/SCA/9294/2020 ORDER stage when there was no detention order placed on record and as these matters are decided on merits of the detention order, the same is not referred to in detail.
17. In view of the foregoing reasons, the impugned detention order is not required to be interfered while exercising the extraordinary jurisdiction under Article 226 of the Constitution of India. The petitions being devoid of any merit are dismissed. Interim relief if any, stands vacated forthwith. Rule is discharged in each of the petition.
18. At this juncture, learned advocate Mr. Goswami states that interim relief granted in Special Civil Application no.9294 of 2020 may be extended for another four weeks. As the detention order is already passed and the proceedings under Section 7 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 are already initiated against the petitioners, such request is rejected.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 19 of 19 Downloaded on : Thu Feb 25 02:00:59 IST 2021