HIMATLAL AMRATLAL KOTECHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner who happens to be the brother of one Kantilal Amratlal Kotecha who is the detenu in the present case challenges the order of detention made by the District Magistrate Bhav- nagar dated 21/01/1981 seeking to detain said Shri Kantilal as in the opinion of the detaining authority the detenu had a disclosed tendency to commit offences under sec. 3 of the Prevention of Black- marketing and Maintenance of Supply of Essential Commodities Act 1980 Shortly stated the facts leading to this petition under Art. 226 of the Constitution of India for appropriate writ order and direction are as under:

(2.) The detenu is an authorised dealer in kerosene for the area of Bhavnagar and Amreli districts except Bhavnagar City and Bhavnagar taluka. The detenu holds licences for dealing in kerosene and light diesel oil and for that purpose he has entered into an agreement with the Indian Oil Corporation Ltd. on 21/03/1968 It is the grievance of the detenu that though no complaint was received against him about any mal-practices having been indulged into by him nor any complaint received by the Indian Oil Corporation or the authorities in that behalf while he was resting at Jamnagar after the treatment he received for his heart ailment by Dr. R. D. Koshiya a Consulting Physician and Heart Specialist during the period between 12th January and 21st January 1981 he was told by Police Sub-Inspector one Shri Kadari on 22/01/1981 in the afternoon at about 2.30 p. m. that there is a warrant against him and he should therefore accompany the said Police Sub-Inspector since he was required by the District Magistrate Bhavnagar. On his expressing his inability in view of his ailment it is his grievance that the said Police Sub-Inspector posted two police constables at his residence at Damnagar so as to restrict his movements. This was done according to the detenu without showing any communication or alleged warrant again him. As a sequel to the posting of two police constables at his residence there was recurrence of heart-attack to the detenu and he was again required to be rushed to Rajkot and admitted to the Nursing Home of Dr. Tanna on 23/01/1981 It is his grievance that even when he was being taken to Rajkot two police constables were directed to accompany him and they were posted at the Nursing home of Dr. Tanna which is near Chaudhari High School at Rajkot The detenu apprehending that there would be his arrest moved this Court for anticipatory bail under sec. 438 of the Criminal Procedure Code. On his application the learned Single Judge taking up criminal matters (V. V. Bedarkar J.) issued Rule and made it returnable on 23/01/1981 and directed that he should not be arrested till further orders were made in that behalf. It is his grievance that the Station Officer incharge of the concerned Police Station at Bhavnagar refused to accept the writ of this Court which was therefore required to be sent by registered post to the District Police Superintendent Bhavnagar.

(3.) On the returnable date that is 30/01/1981 the Public Prosecutor and the Assistant Government Pleader appearing before the learned Single Judge on behalf of the State declared before the learned Single Judge that the petitioner before him namely Kantilal Amratlal Kotecha was already detained by the impugned order bearing the date 21/01/1981 which was served on him while he was being treated in the Nursing Home of Dr. Tanna in the morning of 26/01/1981 He was furnished with the grounds for his detention on 30/01/1981