GORDHADAS MOHANDAS KUKREJA Vs. STATE OF M P

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India for the issuance of a writ of habeas corpus for the release of the petitioner who has been detained by an order of detention passed by the District Magistrate, lndore, under section 3 of the Prevention of Black -marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as "the Act") on being satisfied that the detention of the petitioner is necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. The facts giving rise to this petition briefly are as follows:

(2.) THE petitioner carries on business under the name and style of 'Kukreja Oil Industries' at village Pigdambar, Tehsil Mhow, District lndore. On 17 -8 -1981, respondent No. 3, the Food Controller, inspected the premises of the aforesaid concern of the petitioner. According to respondent No. 3, the petitioner was not present at the premises of his concern at that time and hence he was contacted by respondent No. 3 on telephone and asked to remain present at the time of enquiry but the petitioner informed respondent No. 3 that he was unwell and that he was sending his son Gopaldas to remain present at the time of inspection. Thereafter Gopaldas, the son of the petitioner, reached the premises of the concern. Ratanchand, Munim of the petitioner was also present at the time of inspection. The statements of Gopaldas and Ratanchand were recorded. Ratanchand deposed that the stock consisted of 66 drums of linseed oil, each drum weighing 185 kg. Gopaldas deposed that he was owner of the concern known as 'Jayashree Oil Mills', that the premises of the concern 'Kukreja Oil Industries' owned by his father -the petitioner -were inspected in his presence, that no stock register was maintained and that no fortnightly return was sent by that concern, that only linseed oil was extracted by the concern and that there was no stock of linseed but there was ready stock of 66 drums of linseed oil. Respondent No. 3 found that no plant for refining oil was installed at the premises and that 10 out of the aforesaid 66 drums appeared to contain soyabean oil. The drums were seized and sample was taken in the presence of the petitioner's son and one bottle of the sample was given to him. The sample in a sealed bottle was then sent to the public analyst, Municipal Corporation lndore, who, after analysis, sent his report on 19 -8 -1981 that the sample was not of linseed oil but of refined Soyabean oil. Thereafter, on 20th August 1981, respondent No. 2, the District Magistrate, lndore, passed an order under section 3(2) of the Act directing that the petitioner be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. The order could not, however, be served upon the petitioner as the petitioner was found absconding. Therefore, on 4th September 1981, respondent No. 2 passed an order under section 7(1 )(b) of the Act, which was published in the Government Gazette dated 11th September 1981, notifying the petitioner to surrender within 7 days. Respondent No. 2 also reported abscondence of the petitioner to the Chief Judicial Magistrate, Indore, as required by section 7(1) of the Act, for taking action against the petitioner under the provisions of sections 82, 83, 84 and 85 of the Code of Criminal Procedure. In the meanwhile, respondent No. 2, the District Magistrate, Indore, had sent the order of detention to the State Government for approval and necessary approval was accorded by the State Government on 29th August, 1981 and a report was made to the Central Government in accordance with the provisions of section 3(4) of the Act. On 21 -9 -1981 the petitioner was taken into custody from a nursing home at Indore and the order of detention and the grounds on which the order had been made were served on the petitioner. The petitioner was allowed legal assistance and his representation (Annexure K) was placed before the Advisory Board before which the petitioner appeared through his counsel. The petitioner was informed by the State Government vide Annexure G that the Advisory Board had reported that there was, in its opinion, sufficient cause for the detention of the petitioner and that the State Government had, therefore, confirmed the order of detention under the provisions of section 12(1) of the Act, directing that the period of detention would continue upto 20th March 1982. The petitioner was, however, as stated at the bar, released on parole on the ground of ill health. Thereafter he has filed this petition challenging the order of his detention.

(3.) IN the return filed on behalf of the State, the allegation of the petitioner that the order of detention was invalid, was denied and necessary documents were produced. During the course of hearing affidavits were filed on behalf of the State, of the District Magistrate who had passed the order of detention and of the Food Controller who had inspected the premises of the petitioner. Learned counsel for the petitioner contended that these affidavits should not be taken on record as they ought to have been filed along with the return. It is needless to point out that as far as possible the affidavit in answer to the rule rise should be filed by the person who passed the order of detention. The State should have, therefore, filed the affidavits of the officers concerned along with the return and not during the course of hearing. However, learned counsel for the petitioner was unable to point out that any new fact was for the first time sought to be introduced on behalf of the State by these affidavits or that any prejudice was caused to the petitioner by the delay in filing these affidavits. Under these circumstances we are unable to uphold the contention advanced on behalf of the petitioner that the affidavits in question should not be taken on record. The first contention advanced on behalf of the petitioner was that the grounds of detention and the particulars thereof which were furnished to the petitioner were in Hindi language which the petitioner did not know and hence his detention order was liable to be quashed. Reliance was placed on the decisions of the Supreme Court in Harikisan v. State of Maharashtra : AIR 1962 SC 911 and Hadibandhu Das v. District Magistrate, Cuttack : AIR 1969 SC 43.