VARDHMAN RAJKUMAR JAIN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr.Y.M.Thakkar, learned advocate appearing on behalf of the petitioner and Mr.H.L.Jani, learned AGP appearing for respondent Nos.1 to 3 and Ms.P.J.Dawawala, learned advocate appearing on behalf of the respondent No.4 - Union of India.

(2.) In the present petition, the order of detention dated 8th May, 2001 passed by the District Magistrate, Dahod under the provisions of PBM Act is challenged by the petitioner under Article 226 of the Constitution of India. The order of detention has been passed by the District Magistrate, Dahod under Section 3[2] of the PBM Act. The grounds of detention are communicated and supplied to the petitioner under Section 8[1] of the PAM Act. The respondents - State Government has filed a reply so also the respondent No.4 has also filed affidavit-in-reply and the detaining authority has also filed the affidavit in reply. All the replies are on record of the case.

(3.) Learned advocate Mr.Y.M.Thakkar appearing on behalf of the petitioner has challenged the detention order on the ground that at the time of passing the detention order by the detaining authority, whatever materials were considered against the present petitioner on 8th May, 2001, where subsequently by order dated 18th May, 2001, the detaining authority has deleted Issue No.2 - Sr.No.5 - Para 2 and 3 pertaining to breach of Section 4 of The Edible Oil Packaging Regulation Order, 1998. This change has been brought into effect deleting the charges of breach of Section 4 of the Edible Oil Packaging Regulation Order , 1998 not informed to the State Government by the detaining authority. Therefore, the learned advocate Mr.Y.M.Thakkar has submitted that in such circumstances, when initially the order was passed, this was one of the grounds of detention for passing the detention order against the present petitioner, wherein subsequently this relevant ground of detention has been deleted and therefore it is the duty of the detaining authority to reconsider the matter in light of deletion dated 18th May, 2001 whether the continued detention of the petitioner is justified or not ? Learned advocate Mr.Y.M.Thakkar has also pointed out and raised contention that the said deletion by order dated 18th May, 2001 has been forwarded to the State Government before approving the order of detention. He also submitted that the order of detention has been approved on 19th May, 2001 and before the approval of the said order, this fact was not brought to the notice of the State Government and therefore, subsequent change of deleting some of the grounds of detention, adversely affected the continued detention of the petitioner. He also submitted that when initially the entire grounds of detention has been taken into account by the detaining authority for passing the detention order and subsequently if some of the grounds of detention are deleted, then it was the duty of the detaining authority to see that the deletion of some of the grounds of detention whether justify continued detention or not ? This aspect has not been taken into account by the detaining authority. Therefore, according to his submission, the order of detention is required to be quashed and set aside. Learned advocate Mr.Y.M.Thakkar has submitted that a specific contention has been raised by the petitioner in ground [n] to the effect that the detaining authority has deleted the grounds mentioned in para 2 & 3 of the detention order subsequently on 18th May, 2001 after the detention order has been executed and implemented. This clearly shows that subjective satisfaction arrived at by the detaining authority while passing the detention order on 8th May, 2001 was illegal and erroneous and therefore, this is clear non application of mind on the part of the detaining authority and hence also, the order of detention is required to be quashed and set aside. In ground [o], the contention raised by the petitioner to the effect that the detaining authority after amending the detention order subsequently on 18th May, 2001 has not sent the amended grounds of detention for approval to the State Government and therefore also, the order of detention is vitiated. Learned advocate Mr.Y.M.Thakkar has also submitted that in response to the contention raised by the petitioner in ground [n] and [o], the detaining authority - respondent has given reply in para-18 and 19 but there is no specific reply or reason given by the detaining authority. On the contrary, irrelevant reply has been given by the detaining authority in respect of ground [n] that all the documents have been supplied along with the order of detention to the petitioner on 18-5-2001, whereas the reply in respect of ground [o] is that after passing the order of detention, all the necessary documents along with the order of detention were forwarded to the State Government on 18th May, 2001 and thereafter, the State of Gujarat has approved the order of detention on 19th May, 2001 i.e. within the period of limitation prescribed under the Act. In light of this contention and the reply, learned advocate Mr.Y.M.Thakkar appearing on behalf of the petitioner has submitted that the detaining authority has not applied his mind at the time of passing of the detention order and irrelevant grounds of detention was taken into consideration which was subsequently deleted by the detaining authority. In such circumstances, it was the duty of the detaining authority and the State Government to pass a fresh order and not to amend the grounds of detention. The amendment in the grounds of detention by way of deletion can not justify earlier subjective satisfaction of the detaining authority at the time of passing of the detention order on 8th May, 2001. Therefore, according to him, the order of detention is required to be quashed and set aside.