Rugnath Govardhan Mina vs District Magistrate, Surat
2022 Latest Caselaw 8838 Guj

     C/SCA/18608/2022                             JUDGMENT DATED: 06/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 18608 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE S.H.VORA

and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
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1     Whether Reporters of Local Papers may be allowed                 Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                          Yes

3     Whether their Lordships wish to see the fair copy                 No
      of the judgment ?

4     Whether this case involves a substantial question                 No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                         RUGNATH GOVARDHAN MINA
                                   Versus
                        DISTRICT MAGISTRATE, SURAT
==========================================================
Appearance:
MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1
MR SHAKTI S JADEJA(5491) for the Petitioner(s) No. 1
MS DIVYANGNA JHALA, AGP for the Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE MR. JUSTICE S.H.VORA
          and
          HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                              Date : 06/10/2022

                             ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE S.H.VORA)

1. By way of present petition under Article 226 of the Constitution of India, the petitioner challenges order of detention

C/SCA/18608/2022 JUDGMENT DATED: 06/10/2022

dated 26.04.2022 passed by respondent no.1 under the provisions of Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act (for short 'the Act') as being unconstitutional, violative of Article 21, 22 of Constitution of India and suffering from non existing grounds based upon in- genuine satisfaction of respondent no.1, contrary to principles of natural justice and fair play in action and therefore, same is null and void.

2. Brief facts leading to present petition can be stated thus :-

2.1 On 14.12.2021, raid was conducted by Agriculture Officer at warehouse situated at Mahalakshi Industrial Estate, Plot No.143, Ground Floor, Surat on the basis of secret information that some unknown persons are in possession of Neem Coated Urea meant for agricultural purpose and they are trying to sell and use it for commercial purpose. Upon inquiry from individuals present at Warehouse, it was informed that goods belonged to Mr. Nayak Natwarlal and Doctor Raj Hemant, partners of Krishna Import and Export. It is alleged by the detaining authority that goods found at Warehouse were obtained from firm viz. Tirupati Corporation. It is alleged that the petitioner is supplier. Samples were taken and same were found to be "Neem Coated Urea" meant for agriculture purpose and therefore, FIR came to be registered on 22.12.2021 for the offence punishable under section 25(1) of the Fertilizer (Control) Order, 1985 and under section 3 and 7 of Essential Commodities Act read with sections 406, 409, 487 and 114 of IPC. The petitioner was enlarged on anticipatory bail.

C/SCA/18608/2022 JUDGMENT DATED: 06/10/2022

2.2. According to the petitioner, he is neither named in the FIR nor any role is attributed to him. But on the basis of statement of co-accused, he is made accused in the offence. According to the petitioner, he is implicated in the aforesaid alleged offence on the surmises of the investigating Officer that the goods shown as "Carobamide for Industrial Use Only 46% Nitrogen" were supplied by the petitioner, though no discovery or recovery is effected from the petitioner nor he is found in possession of any Muddamal.

2.3. It is the case of the petitioner that after about 4 months from the date of registration of FIR on 22.12.2021, order of detention is passed on 26.04.2022 placing reliance on single FIR and investigation conducted in connection with said FIR. According to the petitioner, after release on anticipatory bail, there is no additional material to arrive at subjective satisfaction to detain the petitioner, since there is no material after being released on anticipatory bail, the petitioner is indulged in supply of Neem Coated Urea. According to the petitioner, he has submitted detailed representation through Jail to District Magistrate, Surat but not forwarded to either State Government or Union of India, since no reply is filed in this regard. Lastly, it is submitted that it is well settled principle of law that simplicitor registration of FIR cannot have any nexus to conclude that same is prejudicial to maintenance of supply of commodities essential to community and therefore, impugned order is illegal.

2.4. Learned advocate for the petitioner vehemently submitted

C/SCA/18608/2022 JUDGMENT DATED: 06/10/2022

that certain documents of hand written panchnama at page no.371 to 378 and anticipatory bail order at page no.549 to 555 are absolutely illegible and these documents are referred to and relied upon in the grounds of detention. According to the learned advocate for the petitioner supply of illegible copy of particular document is as good as non supply of the same and once, particular document which is referred in the grounds of detention, it becomes part of grounds of detention and hence, non supply of the same amounts to non supply of the grounds of detention.

3. Per contra, it is submitted that samples collected from the 1210 bags of Urea / Carbamide were sent to Fertilizer Testing Laboratory and was tested positive as "Neem Coated Urea" chemical fertilizer. According to the authority, said chemical compound is sold as subsidized fertilizer to farmers through authorized and licensed Agro Centers and Co-operative Societies for agricultural purposes by checking and corresponding to Aadhar Card and Fingerprints in POS machines. Since the petitioner is supplier, the petition may not be entertained.

4. We have heard learned advocates for the respective parties at length and carefully considered grounds of detention and materials / relevant documents provided to the petitioner. It is an undisputed fact that aforesaid documents i.e. panchnama and order of bail referred to in the grounds of detention. In this connection it is worthwhile to refer decision rendered in the case of Dharmista Bhagat v/s. State of Karnataka reported in 1989 Suppl. (2) SCC 155, after referring to Article 22 (5) of the

C/SCA/18608/2022 JUDGMENT DATED: 06/10/2022

Constitution of India, the Hon'ble Court has at page no.157 has observed as under :-

"Therefore, it is imperative that the detaining authority has to serve the grounds of detention which include also all the relevant documents which had been considered in forming the subjective satisfaction by the detaining authority before making the order of detention and referred to in the list of documents accompanying the grounds of detention in order to enable the detenu to make an effective representation to the Advisory board as well as to the detaining authority. Therefore, the non-supply of legible copy of this vital document i.e. panchnama dated February 12, 1988 in spite of the request made by the detenu to supply the same renders the order of detention illegal and bad. This Court in Mehrunissa v. State of Maharashtra has observed that: (1981) 2 SCC 709 (SCC p.710) :

"The detenu was entitled to be supplied with copies of all material documents instead of having to rely upon his memory in regard to the contents of the documents. The failure o the detaining authority to supply copies of such documents vitiated the detention, as has been held by this Court in the tow cases cited by counsel. The detenu is, therefore, entitled to be released. He is accordingly directed to be released forthwith."

5. It appears that petitioner has made representation to the District Magistrate, Surat on 08.09.2022 but the same is not

C/SCA/18608/2022 JUDGMENT DATED: 06/10/2022

forwarded to the competent authority. It is a matter of fact that the State has neither dealt with this aspect of receipt and decision on the representation, whereas, it has come on record that petitioner has made representation, which did not reach to the State Government within 7 to 12 days. The only authority that could have considered the representation is the competent authority of the State Government and therefore, the representation ought to have reached to the competent authority and the State Government immediately. In view of this fact situation, the petition deserves to be allowed on account of non forwarding of representation to the competent authority and supplying illegible document.

6. In view of above, we are inclined to allow the petition. In the result, the present petition is hereby allowed and the impugned order of detention dated 26.04.2022 passed by the respondent - detaining authority is hereby quashed and set aside. The petitioner - detenue is ordered to be set at liberty forthwith if not required in any other case. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(S.H.VORA, J)

(RAJENDRA M. SAREEN,J) SATISH