BALDEVBHAI MOTIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner is a holder of licence issued under the provisions of Essential Commodities Act, 1955 and under the relevant provisions of the Gujarat Essential Articles (Licence, Control and Stock Declaration) Order, 1981 (for short "Control Order"). The petitioner is dealing in essential commodity, namely, kerosene at Dabhoi, District Baroda. It was alleged that the petitioner had issued fake bill in the name of one Gitaben Upadhyay of village Ghandod, Dabhoi Taluka showing that 3500 litres of kerosene was sold to her; that the signature of the customer on the bill issued was also fake. The stock of kerosene was illegally disposed of elsewhere and correct accounts of the receipt and distribution of kerosene were not maintained as required under the relevant provisions of the Control Order. The detaining authority after going through the material placed before it came to the conclusion that the petitioner had committed breach of the provisions of the conditions, of licence issued in his favour and had also committed breach of certain provisions of the Control Order. The detaining authority came to the conclusion that the contravention alleged against the petitioner was punishable under the provisions of S.7 of the Essential Commodities Act 1955. However, in the opinion of the detaining authority, criminal prosecution would be inadequate to prevent the petitioner from indulging in the activities prejudicial to the maintenance of supplies of commodities essential to the community. Hence the detaining authority, i.e. the State Government of Gujarat passed order dated December 7, 1988 directing to preventively detain the petitioner. The order has been passed under the provisions of S.3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as "the Act"). The order has been executed on December 8, 1988. The petitioner has challenged the legality and validity of the order of filing this petition.

(2.) As provided under the Act, the maximum period of detention for which a person can be preventively detained in custody is six months. Ordinarily the period of detention would have come to an end by now. Therefore, we called upon the learned counsel appearing for the respondent-authorities to show as to whether the petitioner was finally released on expiry of the period of detention. After referring to the relevant files the learned counsel for the respondents has stated that the petitioner was frequently released temporarily (for a total period of 104 days) under the provisions of S.15 of the Act. The details of the application and the period for which he has been released from time to time are as follows : <FRM>JUDGEMENT_1700_CRLJ_1990Html1.htm</FRM>

(3.) In view of the aforesaid factual position learned counsel for the petitioner submitted that the State Government of Gujarat has exercised the powers of detention. This very authority has, within a period of fifteen days from the date of detention (i.e. on December 21, 1988 as indicated hereinabove) temporarily released the petitioner for a period of 10 days. This period of temporary release has been extended from time to time up to January 31, 1989. Thereafter the petitioner has been temporarily released frequently and the last order of temporary release is dated June 8, 1989 which is for the period ending on June 27, 1989. In view of this factual back-ground it is submitted that the initial satisfaction arrived at by the detaining authority as regards the inadequacy of criminal prosecution and the apprehension that the petitioner, if released on bail by the criminal Court, will continue the same or similar type of prejudicial activity was not genuine. Therefore it is submitted that the initial satisfaction arrived at by the detaining authority being not genuine the petitioner should be ordered to be released forthwith. Alternatively it is submitted that the power of preventive detention exercised by the State Government of Gujarat is not exercised for the purpose for which the same has been conferred upon it. The power of preventive detention is exercised for ulterior purpose, that is, not with a view to preventively detain the petitioner from indulging in the alleged prejudicial activity, but the same appears to have been exercised as a punitive measure. Otherwise, the State Government itself would not have exercised the power of temporary release frequently which, in the facts of the case, virtually amounts to granting bail for pretty long time. Thus in view of the subsequent actions of the detaining authority (that i.e., the State Government of Gujarat) it is submitted that the initial order of detention itself is bad and the petitioner should be ordered to be released forthwith.