Ravi Kalyani vs The State Of Madhya Pradesh
2022 Latest Caselaw 1356 MP

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             THE HIGH COURT OF MADHYA PRADESH
                      BENCH AT INDORE
(DIVISION BENCH: HON'BLE Mr JUSTICE VIVEK RUSIA AND
  HON'BLE Mr JUSTICE RAJENDRA KUMAR (VERMA) JJ.)
                         Writ Petition No.27313/2021

Petitioner:-                 Ravi Kalyani,
                             S/o Naresh Kalyani, Age-32 years,
                             Occupation-Business,
                             R/o-Vyas Colony, Barnagar, District- Ujjain, (M.P.)
                             Versus
Respondent no.1:-            State of Madhya Pradesh
                             through its Principal Secretary,
                             Food Civil Supplies and Consumer, Protection
                             Department,Vallabh Bhawan, Bhopal (M.P.) -462004
Respondent No.2:-            Collector/ District Magistrate,
                             Ujjain, Kothi Road, Sethi Nagar,
                             Ujjain, M.P.-456010
Respondent No.3:-            Superintending of Police,
                             Ujjain.
Respondent No.4:-            S.H.O., P.S. Barnagar,
                             Ujjain.
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• Shri Manu Maheshwari, learned counsel for the petitioner. • Shri Vivek Dalal, learned Addl. Advocate General for the respondent/State.

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(Heard on 13.01.2022) (Order passed on 31.01.2022) PER VIVEK RUSIA, J.:

The petitioner has filed the present petition being aggrieved by the issuance of detention order passed by respondent no.2 which he came to know by way of news published in the daily newspaper dated 22.11.2021. Since the petitioner did not appear before respondent no.2 in detention proceedings therefore the order has been passed exparte, which is not filed in this P.W.-1 as an impugned order. The petitioner has not been served the aforesaid order as he is still absconding. The petitioner is challenging the validity of the detention order without surrender and without filing the copy of the

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detention order in this petition in light of the law laid down by the Apex Court in the case of Addl. Secretary to Govt. of India and Ors. Vs. Smt. Alka Subhash Gadia & another reported in 1992 Suppl. 1 SCC 496 and the relevant para of the judgment is reproduced below:-

"The courts have the necessary power to entertain grievances against any detention order prior to its execution and they have it in proper cases... where the courts are prima facie satisfied (i) that the order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so" (emphasis added)

2. According to the petitioner test numbers (ii), (iii) and (iv) are applicable in the present case therefore, the writ petition is maintainable without surrender and challenging the detention order in this petition.

3. According to the petitioner initiation of proceedings of detention is based on the oral complaint made by one farmer Rameshwar S/o Rajaram Gurjar that the petitioner has sold 30 bags of fertilizer at a higher price to him. After the aforesaid compliant Senior Agricultural Development Officer Shri Moolchand along with the team conducted a raid in the shop and godown of this petitioner and found 480 bags of IFFCO Urea and 364 bags of Kisan Urea without entry into the POS machine. After the oral complaint and search an FIR has also been registered at crime no.788/2021 under section 3(3), 5, 7 of the Fertilizer (Control) Order, 1985, under section 420 of the Indian Penal Code,1860 and sections 3 and 7 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. The Senior Agricultural Development Officer and the police have submitted a representation

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for initiation of proceedings under section 3 of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. On the basis of the aforesaid complaint vide order dated 20.11.2021 final order under section 3(i)(ii) Act of 1980 for detaining the petitioner for a period of six months has been passed. According to the petitioner he has never sold 30 bags of Urea @Rs.380/- per bag and Diammonium Phosphate (DAP) @Rs.1600/- per bag to Rameshwar. The Senior Agricultural Development Officer has seized 315 numbers of bags from a place that does not belong to him. The said place is registered in the name of his mother Late Deepa Bai Kalyani who had given the shop on rent to Sanjay Kothari vide agreement deed dated 29.01.2021 from 01.01.2021 to 01.12.2021 therefore, the proceedings has been initiated against a wrong person which satisfied the test no. (ii) that it sought to be executed against the wrong person.

4. Shri Manu Maheshwari, learned counsel for the petitioner further submitted that so far test no. (iii) is concerned the detention order is liable to be quashed owing to the same being issued for the wrong purpose. Firstly, the detention order was passed with the purpose of preventive action prejudicial to the maintenance of supplies of commodities essential to the community whereas the petitioner neither produce nor sold the concerned commodities to anyone. It is further submitted that the petitioner's single act with no previous record cannot be considered to be affecting and threatening the public order. Hence liable to be set aside. Shri Maheshwari has further submitted in respect of test no. (iv) that the detention order is liable to be quashed as the same has been passed on vague, extraneous and irrelevant grounds. The petitioner has been implicated on the basis of single oral complaint whereas neither the complainant presented the bill or document in support of the alleged

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sale of Urea or DAP to him. Therefore, the personal liberty of the petitioner is being taken on the basis of a single oral complaint without any documentary evidence. Hence such a detention order is unsustainable law and is liable to be quashed. The Apex Court in case of Addl. Secretary to Govt. of India (supra) has held that where the court is prima facie satisfied that detention order is served to be executed against the wrong person secondly it has been passed for a wrong purpose and it is passed on a vague, extraneous and irrelevant grounds the courts have the necessary power to entertain the grievance against the detention order before its execution.

5. The State government has filed the reply challenging the maintainability of the petition for the reason that without surrender before the competent authority after passing of the detention order writ petition is not maintainable . It is submitted that on a complaint made by Rameshwar Gurjar an FIR has been registered on 19.11.2021 at crime no.788/2021 at police station Barnagar, District- Ujjain under section 3(3), 9, 7 of the Fertilizer (Control) Order, 1985, under section 420 of the Indian Penal Code,1860 and sections 3 and 7 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. On receipt of a complaint, the Sub-Divisional Officer along with Senior Agricultural Development Officer and Tehsildar searched the premises of Ms. Gajanand Marketing and prima facie found the allegations against the petitioner to be true and consequently sealed the premises. A team searched the home and warehouse of M/s Gajanand Marketing wherein recovered 491 bags of IFFCO Urea and 360 bags of Kisan Urea from the alleged warehouse. After the aforesaid proceedings, the complaint was filed by Mr. Moolchand Senior Agricultural Development Officer to the police. Learned District Magistrate after considering the report made by the SADO and also after considering

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the material available, passed the order while exercising its powers available under section 3(2) of the Act of 1980. On apprehending arrest, the petitioner ran away from Barnagar and till today he has not been arrested. The order of detention has duly been communicated by affixing at his residence. Thereafter the said order was immediately forwarded to the Principal Secretary State of M.P., Food Department, Bhopal (M.P.) and in return the State Govt. has approved the aforesaid order under the provisions of the Act of 1980.

6. Shri Vivek Dalal, learned Addl. Advocate General for the respondent/State has placed reliance over the judgment passed by the Apex Court in case of Attorney General for India Vs. Amratlal Prajivandas and others reported in 1994 Vol.5 SCC 54 in which it has been held that the detention order can be passed on a solitary act of detenue. He has also relied on judgments passed by Division Bench of this High Court in writ petition no.9529/2021, writ petition no.9569/2021, writ petition no.9564/2021 and writ petition no.9566/2021 in which vide order dated 24.06.2021 all the writ petitions have been dismissed by upholding the order of detention passed by the District Magistrate in case of sale and possession of Remdesivir injections during Covid-19 pandemic. He has also placed reliance on the judgment passed by the Division Bench of this court in W.P. No.9878/2021 Sonu Bairwa Vs. State of M.P. and others. Finally, he has placed reliance over the judgment passed by the Division Bench in W.P. No.12203/2021 Dilip Sisodia V/s State of M.P. and others in which vide order dated 22.09.2021 in which the Division Bench has refused to entertain the writ petition as the petitioner has failed to surrender after passing of the detention order.

We have heard the learned counsel for the parties.

7. In the present case, since the petitioner has not filed the copy of the detention order along with the petition, therefore, we have called

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upon the Additional Advocate General to produce the original record detention proceedings . Before initiating the detention order a team headed by Sub-Divisional Officer, Senior Agricultural Development Officer, Barnagar and Tehsildar conducted a search in a Gajanand Marketing Court Chouraha Barnagar and its godown situated at Vindiyanchali School Road Barnagar. On the spot, the petitioner was found and denied that fertilizer does not belong to him. The officer prepared the panchanama seized 814 bags and handed it over to the Marketing Federation on supuridinama. The petitioner has filed a photocopy of the lease agreement dated 29.01.2021 executed between Deepa Kalyani ( Mother) and Sanjay Kothari whereby one shop situated between Sindanchal Colony to Badnabar Road Barnagar given on rent for the fertilizer business. The petitioner has filed the form-B i.e. certificate of registration to carry out business for Gajanand Marketing with a location of sale depot at lokamanya tilak infront of Aman Agro Industries. As per the panchanama the raid was conducted in a house and godown belonging to the present petitioner from where 814 bags of Uriya were found without entry into the POS machine. The complainant in his complaint has disclosed that he purchased the aforesaid bags from the present petitioner from a shop situated at Aman Agro Industries. At that time this registration form was not available with the police as well as before the authority but the business address of the petitioner's firm is the same which is disclosed by the complainant. Prima facie the petitioner does not satisfy the test number (ii) that it is being initiated against the wrong person. So far, test number (iii) and (iv) are concerned, there are enough material available against the petitioner for initiation of detention proceedings. Since the petitioner did not appear before the competent authority and he is not in possession of the detention order, therefore, the other grounds raised by him for

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examining the validity of the detention cannot be considered. The Division Bench in the case of W.P. No.12203/2021 (Supra) has held that it is a settled law that detenue can ordinarily seek a writ from this court without surrendering and without obtaining the order of detention and ground thereof. But in our opinion, the necessary ingredients to satisfy the said test are not available in the instant case. Looking to the grounds of challenge by the petitioner and material available in the record produced by the Additional Advocate General we are not satisfied that it has been issued against the wrong person or it is passed for a wrong purpose or passed on a vague, extraneous or irrelevant ground. Hence the writ petition is dismissed. It is made clear that it will be opened to the petitioner to surrender, obtain the detention order in order to assail it in the appropriate fresh proceedings.

    (VIVEK RUSIA)                                           (RAJENDRA KUMAR (VERMA))
        JUDGE                                                        JUDGE

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            BENCH INDORE, ou=HIGH COURT OF MADHYA
            PRADESH BENCH INDORE, postalCode=452001,



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            st=Madhya Pradesh,

2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba2 41effad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D61A1EE 901C09EF29,

NAN serialNumber=7F0BEE2D78BD57DA058F3247441C87 E7E0817FB61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT KAMALASANAN Date: 2022.01.31 19:08:33 +05'30'