PRAVINBHAI KHIMJIBHAI THACKER Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr.H.R.Prajapati, learned advocate for the petitioner, Mr.H.L.Jani, learned AGP for the respondent Nos.1 to 3 and Ms.P.J.Davawala, learned advocate for the respondent No.4.

(2.) In the present petition, the petitioner has challenged the order of detention dated 18/4/2001 passed by the District Magistrate, Kachchh-Bhuj under the provisions of Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act, 1980 (hereinafter referred to as "the P.B.M. Act). The petitioner had been initially detained in Spermatia Central Jail and later on, transferred to the Mehsana District Jail. The ground of detention has been communicated under Section 8(1) of the Act to the petitioner by the detaining authority. The respondent Nos.1, 2 and 3 have not filed any reply, but the respondent No.4 has filed affidavit-in-reply.

(3.) Mr.H.R.Prajapati, learned advocate for the petitioner has challenged the detention order on various grounds. The learned advocate for the petitioner has also submitted that considering the order of detention itself and ground of detention, the subjective satisfaction is required to be satisfied, which is not established from the record. The learned advocate for the petitioner has also submitted that very purpose of passing the detention order is to restrain the detenu from doing illegal activities contrary to the provisions of Essential Commodities Act. Mr.Prajapati has submitted that Section 3(1)(b) requires to be satisfied prior to passing the detention order to the effect that the petitioner must have indulged in such activities and, there was no material with the detaining authority, on which the detaining authority could have come to the conclusion that the petitioner has committed any of the acts, with a view to making gain. It is also submitted that making of gain is not reflected anywhere either in the order of detention passed by the detaining authority or in the grounds of detention supplied to the petitioner. Therefore, when this important aspect is missing, in the result, the detention order is to be set aside. Mr.Prajapati has further submitted that the order of detention passed by the detaining authority suffers from total non-application of mind. In the ground of detention, it is alleged that on 28/3/2001, on the basis of the information received, a raid was conducted at the business premises of the petitioner. From the compound of the petitioner, certain stock of Wheat, Rice, and Levy Sugar was found out. At the time of inspection, persons of petitioner's firm namely (i) Ashokbhai Prabhuram Thakkar and (ii) Vinod Mohanbhai Patel were found present. At the time of inspection, the petitioner was not present at his business place and he was out of station for his business work. When the petitioner returned back, his statement dated 9.4.2001 was recorded wherein the petitioner has disclosed that the stock of essential articles found from the business place of the petitioner belonged to one Shri Jagshi Chatrabhuj Mehta and as he requested for storing his stock of essential articles temporarily, the petitioner allowed him to do so and in absence of the petitioner, he put his stock of essential articles in the business premises of the petitioner. The petitioner submits that the Investigating Officer made no serious attempt to find out Shri Jagshi Chatrabhuj Mehta and submitted his report that there is no such person known as Shri Jagshi Chatrabhuj Mehta. It is submitted that the Investigating Officer did not seriously try to find out the person known as Shri Jagshi Chatrabhuj Mehta. It is not the case of the detaining authority that the address given of such person is false and fake and no such person is residing at the said address. It is submitted that the petitioner has stated everything in his statement dated 9.4.2001 as to how he allowed the said person to put his stock of commodities in the premises of the petitioner. The petitioner had also stated the name of person who put the said stock and also given his address. The petitioner submitted that the said fact was disclosed by petitioner on 9.4.2001. On the basis of the said information, the Investigating Officer went to the house of Shri Jagshi Chatrabhuj Mehta situated at 12, Gayatri Society, Madhapar (Oldvas), Taluka Bhuj. As the said person was not fund at his residence, a summons was served upon one Ranjanben Amrutlal on behalf of the said person. This shows that person known as Shri Jagshi Chatrabhuj Mehta is residing at the address disclosed by the petitioner and on his behalf Ranjanben Amritlal had received the summons issued by District Supply Officer. Merely because the said person was not found out on 10.4.2001 at his residence and since he did not appear thereafter before Investigating Authority though summons was issued on his name, it is no ground to disbelieve the say of the petitioner and to allege that the detaining authority has considered three following aspects for believing that there is no person known as Shri Jagshi Chatrabhuj Mehta: