Rajeshbhai Manubhai Tank vs State Of Gujarat
2023 Latest Caselaw 2899 Guj

     C/SCA/16703/2022                           JUDGMENT DATED: 12/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 16703 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA                                 Sd/-

and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI                             Sd/-
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1     Whether Reporters of Local Papers may be allowed                No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         No

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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                        RAJESHBHAI MANUBHAI TANK
                                  Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
MR HR PRAJAPATI(674) for the Petitioner(s) No. 1
MS NISHKA H PRAJAPATI(10717) for the Petitioner(s) No. 1
MR. ADITYA JADEJA, LD. ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3,4
KSHITIJ M AMIN(7572) for the Respondent(s) No. 4
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
          and
          HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
                        Date : 12/04/2023
                        ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. In the present case, rule was issued by this Court on 29 th August, 2022. However, vide order dated 6 th October, 2022,

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since no affidavit-in-reply was filed by the State, an interim relief in terms of Para-9(C) came to be granted. Today, when the matter is taken up for hearing, it is noticed that no affidavit-in-reply is filed by the Detaining Authority, however, the Union of India, i.e, the respondent No.4 has filed affidavit- in-reply.

2. In the present writ petition, the petitioner has assailed the order of detention dated 2nd August, 2022 passed by the respondent-authority under the provisions of the Prevention of Black Marketing & Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as "the Act, 1980").

3. From the grounds of detention, it appears that the Detaining Authority has taken into consideration four different irregularities, for which, four different FIRs came to be registered with the different police stations, i.e, (i) on 19 th April, 2022 with the Sarkhej Police Station (ii) on 11 th May, 2022 with the Naroda Police Station (iii) on 12 th March, 2020 with the Dabhoda Police Station and (iv) on 20 th October, 2020 with the Naroda Police Station. In all the aforesaid offences which have been registered under the provisions of the Act, 1980, the petitioner has been released on bail.

4. At the outset, learned advocate Mr. H.R. Prajapati appearing for the petitioner has submitted that the petitioner made a representation on 6th August, 2022 to the District Magistrate, Ahmedabad, inter alia, contending that if the District Magistrate is not inclined to revoke the detention order, then the said representation may be forwarded to the

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other competent authority for consideration. Learned advocate Mr. Prajapati, by referring to the contents of the affidavit-in- reply filed by the respondent No.4-Union of India, has submitted that the same would reveal that the representation of the petitioner was not forwarded to the respondent No.4 despite such request having been made by the petitioner and, hence, the impugned order of detention is required to be quashed and set aside.

5. While placing reliance on the decision dated 1 st December, 2020 rendered by a Division Bench of this Court in Letters Patent Appeal No.723 of 2020, it is submitted that the material, on which, the Detaining Authority has place reliance, is required to be supplied to the detenue, i.e, the present petitioner, failing which, the detention order is required to be quashed and set aside. He has further submitted that the Detaining Authority has placed reliance upon certain FIRs registered against the present petitioner, however, the same were not supplied to the petitioner. It is also submitted that although the petitioner has been released on bail in all the offences, yet the Detaining Authority has stated in its order that the petitioner has been released on bail only in one offence which was registered with the Sarkhej Police Station and has totally ignored the fact that in other three FIRs also, the petitioner is on bail and, therefore, only on the ground of this vital aspect being ignored and not considered by the Detaining Authority, the impugned order is required to be quashed and set aside.

6. Learned advocate Mr. Prajapati has further placed reliance on a recent pronouncement of the Apex Court in the

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case of Sushanta Kumar Banik vs. State of Tripura & Ors., reported in AIR 2022 SC 4715, decided on 30.09.2022 and submitted that the vital material or the vital aspect cannot be withheld or suppressed by the Detaining Authority while passing the detention order.

7. Learned advocate Mr. Prajapati has further placed reliance on Section 3 of the Act, 1980, more particularly, sub- section (3) and sub-section (4) thereof. He has submitted that the order of detention passed by the Competent Authority, i.e, the District Magistrate is required to be sent for approval to the State Government within the period as provided in sub-section (3) and, thereafter, when such order is approved by the State Government, the same is required to be further forwarded, within a period of seven days, to the Central Government and such order of detention is required to be reported. He has submitted that however in the present case, since no affidavit is filed by the respondent-State Authorities, the impugned order is required to be quashed and set aside since it is not known whether such order is being reported to the Central Government or not within the time stipulated under the provisions of sub-section (4) of section 3.

8. Per contra, learned AGP Mr. Aditya Jadeja has submitted that the impugned order does not require any interference as the same is appropriately passed. It is submitted that when the authorities found that the petitioner is engaged in such illegal activities and four FIRs have been registered against him in this regard under the provisions of the Act, 1980, the authorities, in its wisdom, has decided to detain the petitioner

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so that such kind of further illegal activities can be prevented. It is submitted that the detention order is self-explanatory and contains all the relevant facts including the registration of the aforesaid FIRs and, hence, the impugned order may not be interfered.

9. The facts, as narrated herein above, would suggest that the impugned order of detention dated 2 nd August, 2022 has been passed by the respondent-State Authorities, detaining the petitioner under the provisions of the Act, 1980. The impugned order of detention is premised on the basis of registration of four FIRs of the alleged irregularities committed by the petitioner in violation of the provisions of the Act. The four FIRs are registered with the different police stations viz. (i) on 19th April, 2022 with the Sarkhej Police Station (ii) on 11 th May, 2022 with the Naroda Police Station (iii) on 12 th March, 2020 with the Dabhoda Police Station and (iv) on 20 th October, 2020 with the Naroda Police Station. It is not in dispute that the petitioner has been enlarged on bail in all the aforesaid offences. A bare perusal of the impugned order of detention would reveal that though the respondent-authority has recorded the fact of petitioner having been released on bail in connection with the FIR registered with the Sarkhej Police Station, however, for the rest of the offences which are registered with the different police stations, as mentioned herein above, though the petitioner has been released on bail, the said fact has not been recorded in the detention order. In such circumstances, referred to above, we are of the view that in the absence of any affidavit filed by the respondent- authority as also the statement made by the learned advocate

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appearing for the petitioner that the respondent-authorities have not supplied the copies of the FIRs as well as the orders passed in the bail applications to the petitioner, as per the settled proposition of law, the order of detention would become vulnerable.

10. In the order dated 1 st December, 2020 passed in the Letters Patent Appeal No.723 of 2020 and allied matters, the Division Bench of this Court, in an analogous facts wherein the orders of anticipatory bail and regular bail were not supplied by the Detaining Authority to the detenue, has held thus;

"6 In the aforesaid context, Article 22(5) of the Constitution of India may be reproduced. It says:

"22(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order".

The Article has two facets; (1) communication of the grounds on which the order of detention has been made; (2) opportunity of making a representation against the order of detention.

7. We may refer to and rely upon a decision of the Supreme Court in the case of Shalini Soni & Ors. vs. Union of India & Ors. reported in AIR 1981 SC 431, wherein the Supreme Court observed as under:

"The matter may also be looked at from the point of view of the second fact of Article 22(5). An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into

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account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is clear that "grounds" in Article 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The 'grounds' must be self-sufficient and self- explanatory. In our view copies of documents to which reference is made in the `grounds' must be supplied to the detenu as part of the `grounds'. "

8 On this short point alone, we allow these appeals and quash the detention orders dated 26.07.2020. The appellants shall be set at liberty forthwith, if not required in any other offence. We may note here that as the order of the learned Single Judge was at the pre-execution stage, as such we are not making any comments on the order of the learned Single Judge."

11. Thus, the copies of the documents, to which, reference has been made by the Detaining Authority in the present case were mandatorily required to be supplied to the petitioner, and in the absence of such exercise being undertaken by the Detaining Authority, the same is being hit by the provisions of Article 22(5) of the Constitution of India. Thus the impugned order is required to be quashed and set aside on this ground.

12. One another aspect which we would like to record is that the petitioner has made a representation against the detention order on 6th August, 2022 to the District Magistrate, i.e, the Detaining Authority, however, nothing has been brought on

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record that whether such representation has been decided or not. It is interesting to note that the respondent No.4-Union of India has filed an affidavit and the grounds of such affidavit reveal that though they have received the Detention Order, Grounds of Detention and other relevant documents from the State Authorities on 26.09.2022, however, they have not received the representation filed by the petitioner. It is also not coming on record whether the time limit, as prescribed under the provisions of Section 3 of the Act have been complied with or not. The State Government was required to approve the order passed by the Detaining Authority within the time limit as prescribed in sub-section (3) and the same has to be reported to the Central Government within a period of seven days as provided under sub-section (4) of the Act. However, nothing is pointed out to this Court as to whether such statutory provisions have been followed or not. Hence, the impugned order of detention is required to be quashed and set aside on this ground also.

13. On the substratum of the aforesaid analysis, the present application is allowed. The impugned order of detention dated 02.08.2022 is hereby quashed and set aside. The detenu 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.

(A. S. SUPEHIA, J)

(DIVYESH A. JOSHI,J) VAHID