GULABBHAI BUDHABHAI PATEL Vs. DISTRICT MAGISTRATE SURAT

JUDGEMENT

(1.) The petitioner who is a detenu under the provisions of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act 1980 (hereinafter referred to as the Act) has brought in challenge the order of his detention on diverse grounds.

(2.) The order of detention Annexure A is dated 1-1-1990. It is passe by the Distract Magistrate Surat. It recites that the detaining authority being satisfied about the need to preventively detaining the detenu with a view of preventing him from acting in any manner which would prejudice the maintenance of stock of kerosene which is an essential commodity the order was required to be passed against him. This order is supported by the grounds of even date which is at Annexure C and which were supplied to the detenu when the was taken in detention pursuant to be impugned order. The grounds of detention amongst other recite that an information was received by the District Supply Officer on 12-10-1989 form a person who refused to disclose his identity that one Tanker No. GTT 5374 was to proceed from India Oil Corporation Surat Depot and the said tanker was to go to Kosamba and was to proceed to Jiva Fuel Centre Petrol and Diesel Pump at Kosamba with the purpose of adulterating diesel with kerosene and on the basis of the said information watch was kept on the said petrol pump and it was found that the kerosene contained in the said tanker was unloaded in the diesel tank of the said petrol pump and the culprits were caught red-handed. Thereafter the grounds of detention further recite by way of summary and conclusion that the petitioner had colluded with the tanker-owner Shri Mangilal Jain and had indulged in the nefarious activity of facilitating blackmarketing by adulteration diesel with kerosene. The grounds of detention also recite a further fact that the detenu had not kept correct accounts as kerosene dealer and had committed breach of the provisions of the Gujarat Essential Article (Licensing Control and Stock Declaration) Order 1981 However the grounds of detention clearly indicate that amongst others fault was found with the activities of the detenu by which he was helping adulteration of diesel with kerosene. So far as this subjective satisfaction reached by the detaining authority in the grounds is concerned it does not logically support the order of detention Annexure A which clearly mentions that the detenu was ordered to be detained with a view to preventing him form disrupting the maintenance of stock of kerosene which is an essential commodity. The order is not passed on the basis that the detenu was indulging in adulterating diesel by permitting addition of kerosenes to diesel. The learned Advocate for the petitioner that the grounds of detention to that this infirmity and submitted that the grounds of detention to that extent are clearly extraneous to the order of detention and would reflect no-application of mind on the part of the detaining authority when he passed the impugned order. This contention of the learned Advocate for the petitioner was tired to be combated by the learned Addl. Public Prosecutor Mr. G. D. Bhatt of the respondents. He submitted that admittedly kerosene is an essential commodity and the detenus activities reflected in the grounds of detention had affected the stock of kerosene as such and that the recital regarding the detenus abetment in adulteration of diesel was a more inference from the facts and in the process even kerosene can be said to have been adulterated with diesel by mixing it up with diesel and consequently the said recital regarding the adulteration of diesel cannot be said to be extraneous to the order. He invited our attention to Clauses 18 and 20 of the Gujarat Essential Articles (Licensing Control and Stock Declaration) Order 1981 and submitted that as per this Order there are general conditions laid down for the dealer so that the dealer cannot driver the supply of essential commodity of any other place There is a restriction imposed on the use of essential article by all concerned. That may be so. However the question remains as to whether the detaining authority had relied upon an extraneous ground while passing the impugned order or not. To recapitulate the detention order clearly recites that the detenu is detained with a view to preventing him form disrupting the maintenance of supply of essential commodity viz. kerosene while the grounds amongst other do indicate that the detaining authority did consider the further question as to whether the detenu had colluded with Mangilal Jain in getting diesel adulterated with kerosene and had facilitated blackmarketing which would obviously be with reference to diesel. So far as this part of the ground is concerned the subjective satisfaction mentioned therein does not support the detention order and on the contrary goes beyond it and to that extent its becomes extraneous to the order of detention. That would clearly indicate non-application of mind on the part of the detaining authority on this aspect.

(3.) So far as the provision of the Act are concerned they do not contain any Section like Sec. 5A of the COFEPOSA or Sec. 6 of the Gujarat Prevention of Anti-Social Activities Act and hence it is not open to the respondents to salvage the situation by reference to such provisions. Even if one of the grounds is found to be invalid the entire subjective satisfaction would fail. In view of our aforesaid conclusion no no doubt is left in our mind that the subjective satisfaction in the present case got vitiated on account of consideration of extraneous or irrelevant facts amongst others by the detaining authority when he passed the impugned order. On this short ground therefore the impugned order Annexure A fails.