Orissa High Court
Rajendra Kumar Agarwal vs State Of Orissa And Anr. on 30 September, 2005
Equivalent citations: 2005CRILJ81, 2005(II)OLR760
Author: L. Mohapatra
Bench: L. Mohapatra, R.N. Biswal
JUDGMENT L. Mohapatra, J.
1. The petitioner who has been detained pursuant to order of the District Magistrate. Sambalpur passed on 13.7.2005 under Section 3(1), 3(2) and 3(3) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter called as 'the Act') challenges the legality of the aforesaid order in this writ application.
2. From the order impugned before this Court in Annexure-10, it appears that the District Magistrate, Sambalpur passed the detention order under the Act on 13th July, 2005 and the same was confirmed by the State Government in Annexure-11 on 23rd July, 2005. The grounds of detention are that on 13.7.2005 at about 11.30 P.M. the petitioner was caught red handed while loading Blue dyed Kerosene supplied to him for distribution under the Public Distribution System during June, 2005 in a Tanker bearing registration No. CG-10-ZB-0828 for the purpose of transporting the same to Raipur for selling in the open market at a higher price to gain illegal profit depriving the bona fide consumers of the locality from getting their monthly entitlements at Government price. In support of the aforesaid allegations as it evident from grounds of detention, the District Magistrate relied upon the statement of the driver of the Tanker as well as the helper of the same Tanker. The District Magistrate also relied upon the inquiry report of the Sub-Collector (Sadar), Sambalpur for passing the order of detention. Apart from the above, the grounds of detention also indicate that on verification of the Books of Accounts it was found that the petitioner was in possession of 6,500 litres of kerosene on 4.7.2005 after which the Stock Register was maintained and the Issue Register and cash memo were maintained up to 30th June, 2005. The said documents establish that the petitioner failed to maintain the daily accounts contravening the above condition of the licence granted in his favour under the P.D.S. (Control) Order, 2002 as well as Clause 9 of the said Control Order. The other ground mentioned in the grounds of detention relates to contravention of certain provisions of the P.D.S. (Control) Order, 2002 and Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993.
3. Shri Ashok Mohanty, the learned Senior Counsel appearing on behalf the petitioner challenges the order of detention basically on two grounds. The first ground taken by the learned Counsel is that on 13.7.2005 at about 11.30 P.M. a raid was conducted and kerosene was seized. Even though such raid was conducted at 11.30 P.M. in the night, the order of detention was passed on the very same day by the District Magistrate. Sambalpur. In the grounds of detention reliance is placed on the statements of the driver and helper of the Tanker as well as on the inquiry report of the Sub-Collector (Sadar), Sambalpur which were not available with the District Magistrate on 13.7.2005 as is evident from the grounds of detention.
The second ground taken by the learned Counsel appearing for the petitioner is that the other allegations on the basis of which the petitioner has been detained only relate to contravention of certain provisions of the aforesaid two Control Orders and there being no past history of such contravention, at best the District Magistrate could have taken action under the provisions of the said Control Orders either by cancelling the license or by suspending the same. On the above allegations an order of detention could not have been passed in absence of any material whatsoever to show that the petitioner was involved in similar activities in the past.
4. The learned Counsel for the State in support of the detention order contended that the petitioner was caught red handed on 13.7.2005 while attempting to transport kerosene to Raipur for the purpose of selling in the open market at a higher price depriving the consumers for whom he had been appointed by the Government. According to the learned Additional Government Advocate, this conduct itself is enough to pass an order of detention under the Act.
5. Undisputedly the raid was conducted at 11.30. P.M. in the night of 13.7.2005 and the District Magistrate. Sambalpur passed the order of detention on 13.7.2005. This obviously means that during the raid the order of detention was prepared and signed by the District Magistrate. The grounds of detention clearly indicate that the statements of the driver and helper of the Tanker had been recorded on 14th July. 2005 and the Sub-Collector (Sadar), Sambalpur submitted his report on 14.7.2005. This clearly proves that on 13.7.2005 when the District Magistrate passed the order of detention neither the statements of the driver and helper of the Tanker nor the report of the Sub-Collector (Sadar), Sambalpur were available with him. In absence of these materials, one fails to understand as to how the District Magistrate passed an order of detention on 13.7.2005. We, are therefore, of the view that the detention order passed on 13.7.2005 was based on no material. It is also interesting to note that in connection with the raid, an F.I.R. was lodged for commission of offence under Section 7 of the E.C. Act read with Section 34 of the Indian Penal Code on 16.7.2005 and, therefore, this document was also not available to the District Magistrate, Sambalpur on 13.7.2005.
6. So far as second ground of challenge is concerned, it appears from the grounds of detention that the petitioner has contravened certain provisions of the P.D.S. (Control) Order, 2002 and Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 and there is no allegation that the petitioner was involved in such activities in the past. Therefore, we agree with the contention of the learned Counsel appearing for the petitioner that for the aforesaid contravention, action under the provisions of the said Control Orders could be taken either by cancelling the licence or suspending the same and there was no need for passing of an order of detention under the Prevention of the Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980.
7. In view of the findings arrived at in respect of both the grounds taken by the learned Counsel for the petitioner, we have no hesitation to quash the order of detention dated 13.7.2005 passed by the District Magistrate, Sambalpur in Annexure-10 as well as the order of detention confirmed by the State Government in Annexure-11 on 23rd July, 2005. It is further directed that if the detention of the petitioner is not required in connection with any other case, he be set at liberty forthwith.
Accordingly, the W.P.CRL is allowed.
R.N. Biswal, J.
I agree.