Shakirhusen Majidbhai Rangrej vs State Of Gujarat
2023 Latest Caselaw 3627 Guj

    C/SCA/12969/2022                            JUDGMENT DATED: 29/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 12969 of 2022
                                  With
               R/SPECIAL CIVIL APPLICATION NO. 9423 of 2022
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 14923 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
     to see the judgment ?                                           NO

2    To be referred to the Reporter or not ?                         NO

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

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

================================================================
                       SHAKIRHUSEN MAJIDBHAI RANGREJ
                                   Versus
                             STATE OF GUJARAT
================================================================
Appearance in Special Civil Application No:12969 of 2022
MR. SOEB R. BHOHARIA(2205) for the Petitioner(s) No. 1
VALIMOHAMMED PATHAN(6383) for the Petitioner(s) No. 1
MR ADITYASINH JADEJA, AGP for the Respondent(s) No. 1,2,3
================================================================
Appearance in Special Civil Application No:9423 of 2022
MR. HR PRAJAPATI (674) for the Petitioner(s) No. 1
MS NISHKA H PRAJAPATI(10717) for the Petitioner(s) No. 1
MR ADITYASINH JADEJA, AGP for the Respondent(s) No. 1,2,3
================================================================
Appearance in Special Civil Application No:14923 of 2022
MR BHAVIK R SAMANI(8339) for the Petitioner(s) No. 1
MR ADITYASINH JADEJA, AGP for the Respondent(s) No. 1,2
MS SANGNA KANSAGRA(9378) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 4
================================================================
    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA


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      C/SCA/12969/2022                                 JUDGMENT DATED: 29/04/2023




              and
              HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                               Date : 29/04/2023
                               ORAL JUDGMENT

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

Draft amendment is allowed in terms of draft. The same shall be carried out forthwith.

1. At the outset, learned advocates appearing for the respective parties have submitted that by the judgment and order dated 12.04.2023 passed in Special Civil Application No.16703 of 2022, in case of similarly situated person and co-accused, this Court has quashed and set aside the detention order. Thus, it is submitted that similar order may be passed.

2. In the present writ petitions, the petitioners have assailed the orders of detentions 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. It appears that the Detaining Authority has taken into consideration irregularities, for which, FIR came to be registered with the different police station, i.e, (i) on 20.04.2022 with the Sarkhej Police Station. However, the detention order does not disclose the same, but the affidavit in reply filed by the respondent-authorities discloses such reason.

4. While placing reliance on the decision dated 1st December, 2020 rendered by a Division Bench of this Court in Letters Patent Appeal No.723 of 2020, learned advocates appearing for the petitioners have

C/SCA/12969/2022 JUDGMENT DATED: 29/04/2023

submitted that the material, on which, the Detaining Authority has placed 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. It is further submitted that the Detaining Authority has not recorded anything in the detention order, which can indicate that the petitioners are involved in the irregularities. It is also submitted that although the petitioners are released on bail in the offence, yet the Detaining Authority has no referred the same and has totally ignored the fact of the petitioners having being released on bail. It is submitted that since such vital aspect being ignored and not considered by the Detaining Authority, the impugned order is required to be quashed and set aside.

5. 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 petitioners are engaged in such illegal activities and FIRs have been registered against them in this regard under the provisions of the Act, 1980, the authorities, in its wisdom, has decided to detain the petitioners 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.

6. The facts, as narrated herein above, would suggest that the impugned orders of detention dated 2 nd August, 2022 are passed by the respondent-State Authorities, detaining the petitioners under the provisions of the Act, 1980. Though the impugned order does not state that it is passed on the registration of the FIRs, it appears from the

C/SCA/12969/2022 JUDGMENT DATED: 29/04/2023

affidavits-in-reply that it is premised on the basis of registration of FIRs of the alleged irregularities committed by the petitioners in violation of the provisions of the Act. The FIR registered with Sarkhej Police Station, Ahmedabad on 20.04.2022. It is not in dispute that the petitioners are enlarged on bail in all the aforesaid offences. A bare perusal of the impugned orders of detention would reveal that the respondent-authority has not referred the fact of the petitioners having being released on bail, vide orders dated 09.05.2022, 30.04.2022. In such circumstances, referred to above, we are of the view that in the absence of such consideration the order is required to set aside. The respondent-authorities have also not supplied the copies of the FIR as well as the orders passed in the bail applications to the petitioner, as per the settled proposition of law, hence the order of detention would become vulnerable.

7. In the order dated 1st 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

C/SCA/12969/2022 JUDGMENT DATED: 29/04/2023

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 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."

8. 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.

9. From the affidavit-in-reply it is manifest that the authorities have also referred to an FIR dated 19.04.2022 registered at Sarkhej Police Station against one accused Rajendra Kumar, who was caught with 180 bags of food grains. Pursuant to the information received of registration of the said FIR, another FIR was registered at Sarkhej Police Station on

C/SCA/12969/2022 JUDGMENT DATED: 29/04/2023

20.04.2022 against the petitioners. The co-accused of the other FIRs, who were detained under the Act had assailed their orders of detention by filing Special Civil Application No.16703 of 2022. By the order dated 12.04.2023, this Court has set aside and quashed the order of detention in case of the co-accused.

10. On the substratum of the aforesaid analysis, the present writ petitions are allowed. The impugned orders of detention dated 02.08.2022 are hereby quashed and set aside. The detenus are 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.

Sd/-

(A. S. SUPEHIA, J)

Sd/-

(DIVYESH A. JOSHI,J) ABHISHEK/1