BALDEVBHAI MOTIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner is a holder of license 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 a faked bill in the name of one Gitaben Upadhyay of village Ghandod Dabhoi Taluka showing that 3500 liters of kerosene was sold to her that the signature of the customer on the bill issued was also faked. 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 favor 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 Sec. 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. passed order dated 7/12/1988 directing to preventively detain the petitioner. The order has been passed under the provisions of Sec. 3(1) of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act 1980 (hereinafter referred to 88 the Act). The order has been executed on 8/12/1988 The petitioner has challenged the legality and validity of the order by 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 expire 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 Sec. 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: @@@ --------------------------------------------------------------------------- S. No. Date of Date of Period for which temporary application release release has been ordered. ---------------------------------------------------------------------------------- 1 21 23 10 days 2 28 1 15 days (temp. release extended) 3 10 10 10 days - do - 4 23 25 7 days (temp. release extended) 5 8 10 10 days 6 24 7 7 days 7 10 10 10 days 8 21 21 15 days 9 8 9 20 days -------- Total 104 days ------------------------------------------------------------------------------------ @@@

(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 21/12/1988 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 upto 31/01/1989 Thereafter the petitioner has been temporarily released frequently and the last order of temporary release is dated 8/06/1989 which is for the period ending on 27/06/1989 In view of this factual background it is submitted that the intial 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. Therefor 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 ulterier 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.