MOHMADRAFIK IQBALBHAI MEMAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner came to be dtained under the Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act, 1980 (for short "PBM Act"), by virtue of order passed by the District Magistrate, Vadodara, on 5th May, 2010, in exercise of powers under Section 3(2) of the said Act. The detaining authority found that the petitioner's activities were prejudicial to the maintenance of supplies of commodities essential to the community and may result in black marketing of such commodities and, therefore, he is required to be immediately prevented from pursuing his activities by starting business in the name of his relative or associates. The detaining authority has further observed that if a complaint is lodged under Section 3 & 7 of the Essential Commodities Act, 1955, he may get himself released on bail or may obtain an injunction order and may continue his activities and, therefore, detention is the only effective remedy that can be resorted to. Ultimately, the order of detention was passed.

(2.) The said order is sought to be challenged in this petition under Article 226 of the Constitution of India on various grounds. However, learned Advocate, appearing for the petitioner, has restricted his arguments to the ground that the detaining authority has arrived at subjective satisfaction on extraneous material in absence of any cogent or concrete material to support such a conclusion. He has contended that there is no material to show that the detenu has committed the act, as contemplated under explanation of Section 3(1) of the Act, with a view to make a gain in any manner. He has contended that for the same allegations as levelled in the grounds of detention, the Authority has already registered FIR being CR No.II-21 of 2010 against the detenu on 23.4.2010 with Nasavadi Police Station for the offences under sections 3 & 7 of the Essential Commodities Act. However, despite the fact that for the same allegations the detaining Authority has, without application of mind, passed impugned order on 5.5.2010, and subjective satisfaction gets vitiated. Learned Advocate has also contended that the representation made on behalf of the detenu has not been placed and decided by the authority competent to deal with the representation and the same has not been considered in accordance with law and with proper application of mind and also not considered in conformity with Art. 22 of the Constitution of India. He, therefore, contended that the continued detention of detenu is vitiated and he may be ordered to be enlarged from the detention. It is contended that there was no material before the detaining Authority to reach to a conclusion that despite the filing of prosecution, the petitioner is likely to continue the similar kind of activities and, therefore, the detaining authority had no material to nurse any such apprehension that despite the filing of prosecution the detenu would continue similar activities. Learned Advocate has also placed reliance upon the decision of the Hon'ble Apex Court in the case of SHASHI AGRAWAL v/s. STATE OF U.P., reported in 1988 SC 596.

(3.) Respondent Nos.1,2 and 3 are represented by learned A.G.P. Respondent No. 4- Union of India is represented by Mr. Shaikh, learned Standing Counsel. The petition is vehemently opposed to by learned A.G.P. and learned Standing Counsel for the Central Government. Both the learned Counsel have supported the order of detention passed against the detenu and contended that the detaining Authority has passed the order of detention in accordance with law.