Bannalal Vahilda Chavla Vs. Union of India & Ors.
EmailAppeal: Writ Petition (Crl.) No. 51 of 1999
(Under Article 32 of the Constitution of India)
(Under Article 32 of the Constitution of India)
Petitioner: Bannalal Vahilda Chavla
Respondent: Union of India & Ors.
Apeal: Writ Petition (Crl.) No. 51 of 1999
(Under Article 32 of the Constitution of India)
(Under Article 32 of the Constitution of India)
Judges: G.T. NANAVATI & S.N. PHUKAN, JJ.
Date of Judgment: Jul 29, 1999
Appearances:
Mr. Dushyant Dave, Senior Advocate, Mr. Ranjit Sharma, Mr. Pankaj Kumar Singh, Mr. K.L. Janjani, Mr. Haris Beeran, Advocates with him for the Petitioner.
Mr. S.K. Dholakia, Senior Advocate, Ms. Hemantika Wahi, Ms. Sumita Hazarika, Advocates with him for the Respondent.
Mr. Rajiv Nanda, Mr. K.N. Nagpal, Mr. B.K. Prasad, Mr. B.V. Balram Das, Advocates for the Union of India.
Head Note:
PREVENTIVE DETENTION
Gujarat Preventive of Black Marketing and Maintenance of Essential Commodities Act, 1980
Gujarat Preventive of Black Marketing and Maintenance of Essential Commodities Act, 1980
Section 3(2) – Detention – Detenu indulged in black marketing of blue kerosene oil in connivance of supplier – Detention order passed on 8.10.98 – Detention on 8.1.99 – Ground of possession of blue kerosene turned into white – Kerosene purchased at market price from authorised dealer against bills – Payment made – No excess quantity found – No material to show that blue kerosene was sold at subsidy – Relevant facts not considered. Held that satisfaction arrived at by District Magistrate cannot be said to be reasonable and genuine. Detention orders set-aside. (Para 5)
JUDGEMENT:
1. The petitioner is challenging in this petition the order of detention passed against him by the District Magistrate, Ahmedabad under Section 3(2) of the Prevention of Black Marketing and Maintenance of Essential Commodities Act, 1980.
2. The facts leading to the passing of the detention order, briefly stated, are as follows. On 4.7.1998, the Officers of the Food and Civil Supplies Controller’s Office raided the sugar candy factory of the petitioner. He was found in possession of 1140 litres of white colour kerosene and 515 litres of blue coloured kerosene. The white colour kerosene was suspected to be blue coloured kerosene later on turned into white. The officers suspected that the entire quantity of kerosene was a part of the blue coloured kerosene meant for distribution amongst weaker section of the society at subsidised rates through the Public Distribution System. Analysis of samples of that kerosene done by the Forensic Science Laboratory, Ahmedabad confirmed their suspi-cion. As the petitioner was thus found to have unauthorisedly obtained, stored and consumed blue coloured kerosene meant for weaker section of the society for his business purpose and as the entire quantity of kerosene was purchased from M/s. Purvi Petro-leum under bills showing sale of white kerosene and as M/s. Purvi Petroleum was earlier also found to be indulging in black market-ing of blue kerosene, a proposal was made by the Food and Civil Supplies Controller to the District Magistrate, Ahmedabad for taking necessary action against the petitioner. The District Magistrate on consideration of the materials placed before him, was satisfied that the petitioner was in collusion with M/s. Purvi Petroleum which was indulging in black marketing of blue coloured kerosene and that with a view to prevent the petitioner from acting in a manner prejudicial to the maintenance of supply of essential commodity like kerosene, it was necessary to preven-tively detain him, and, therefore, passed an order for detention of the petitioner on 9.10.1998. The petitioner was actually detained on 8.1.1999 pursuant to the said order of detention.
3. Mr. Dushyant Dave, learned senior counsel for the petitioner, submitted that there is no restriction with respect to possession of white colour kerosene and yet in the grounds of detention it is stated that “for storage or consumption of the white coloured kerosene, you are not having any permit of licence/parvenu either in your name or in the name of the firm”. He submitted that this statement in the grounds of detention shows non-application of mind and a casual approach by the District Magistrate while passing the order of detention. During the hearing of this peti-tion Mr. Dholakia, learned senior counsel appearing for the District Magistrate, stated that really there is no restriction regarding possession, storage and use of white kerosene by con-sumers. But he submitted that the white colour kerosene which was found from the petitioner’s possession was really blue coloured kerosene turned into white and it was in that context the Dis-trict Magistrate stated in the grounds of detention that in respect of the said quantity of white kerosene the petitioner did not have any licence or permit. What is submitted by Mr. Dholakia appears to be correct and, therefore, the contention raised by Mr. Dave in this behalf deserves to be rejected.
4. It was next contended by Mr. Dave that the entire quantity of kerosene found from the possession of the petitioner was pur-chased under bills from M/s. Purvi Petroleum, which firm is an authorised dealer, and the petitioner had paid proper price for purchasing the kerosene. He had purchased the entire quantity of kerosene at Rs. 9/- per litre which was the market price for white kerosene at that time. The petitioner is having a candy factory and is using about 400 to 500 litres of kerosene every-day. He was thus not found in possession of that much quantity of kerosene which can be said to be excessive and more than his requirement and which could lead to any adverse inference. He was always purchasing kerosene from M/s. Purvi Petroleum and that fact is also mentioned in the grounds of detention and utilised by the District Magistrate for inferring collusion with M/s. Purvi Petroleum. Mr. Dave submitted that the petitioner had produced bills when his candy factory was raided and had explained to the officers that he did not know that there was any restriction regarding storage and use of blue coloured kerosene. Therefore, though the petitioner could have been prosecuted under the Gujarat Petroleum Products (Licensing Control and Stock Declaration) Order, 1979 or the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1983, this was not a case justifying passing of an order of detention against the petition-er.
5. As mentioned in the grounds of detention the petitioner is having a sugar candy factory and he has been purchasing kerosene, for use in his factory, from M/s. Purvi Petroleum since a long time. From what is stated in the grounds of detention and the reply Affidavit filed by the District Magistrate it becomes clear that the satisfaction of the District Magistrate that the peti-tioner was in collusion with M/s. Purvi Petroleum was based upon only two circumstances, namely, (1) the petitioner had been purchasing kerosene from M/s. Purvi Petroleum since a long time and (2) the kerosene which was found in petitioner’s possession on 4.7.1998 was sold under the bills as free sale white kerosene. There was no material before the District Magistrate to show that sufficient quantity of white kerosene was not available in the market in or about July 1998 and that M/s. Purvi Petroleum was not authorised to sell white kerosene. The petitioner had paid the market price for purchasing kerosene. The whole quantity of kerosene was purchased @ Rs. 9/- per litre and not at the subsi-dised rate at which blue kerosene was sold. It is also nobody’s case that the bills issued by M/s. Purvi Petroleum did not re-flect the correct quantity sold and the correct price charged. In view of these facts and circumstances and in absence of any material to show that the petitioner in fact knew that blue coloured kerosene was sold at subsidised rates and that it was meant for distribution only amongst weaker section of the society for cooking and illumination purposes, it is difficult to appre-ciate how the District Magistrate could have genuinely satisfied himself about any collusion between the petitioner and M/s. Purvi Petroleum. It may be that M/s. Purvi Petroleum was dishonestly selling blue coloured kerosene to those not entitled to it and was thus indulging in black marketing of blue coloured kerosene; but, there was hardly any reason for the petitioner to collude with it. There was no necessity for him to do so. There was also no material before the Detaining authority to show that the peti-tioner had in past committed any illegal act as regards posses-sion, storage and use of blue coloured kerosene. All these relev-ant aspects were not considered by the District Magistrate before passing the detention order. Therefore, the satisfaction arrived at by him cannot be said to be reasonable and genuine. An order of detention passed upon such vitiated satisfaction deserves to be set aside.
6. In the result, we allow this writ petition, quash and set aside the impugned order of detention and direct that the peti-tioner be set at liberty forthwith, unless his presence is re-quired in jail in connection with some other case.
2. The facts leading to the passing of the detention order, briefly stated, are as follows. On 4.7.1998, the Officers of the Food and Civil Supplies Controller’s Office raided the sugar candy factory of the petitioner. He was found in possession of 1140 litres of white colour kerosene and 515 litres of blue coloured kerosene. The white colour kerosene was suspected to be blue coloured kerosene later on turned into white. The officers suspected that the entire quantity of kerosene was a part of the blue coloured kerosene meant for distribution amongst weaker section of the society at subsidised rates through the Public Distribution System. Analysis of samples of that kerosene done by the Forensic Science Laboratory, Ahmedabad confirmed their suspi-cion. As the petitioner was thus found to have unauthorisedly obtained, stored and consumed blue coloured kerosene meant for weaker section of the society for his business purpose and as the entire quantity of kerosene was purchased from M/s. Purvi Petro-leum under bills showing sale of white kerosene and as M/s. Purvi Petroleum was earlier also found to be indulging in black market-ing of blue kerosene, a proposal was made by the Food and Civil Supplies Controller to the District Magistrate, Ahmedabad for taking necessary action against the petitioner. The District Magistrate on consideration of the materials placed before him, was satisfied that the petitioner was in collusion with M/s. Purvi Petroleum which was indulging in black marketing of blue coloured kerosene and that with a view to prevent the petitioner from acting in a manner prejudicial to the maintenance of supply of essential commodity like kerosene, it was necessary to preven-tively detain him, and, therefore, passed an order for detention of the petitioner on 9.10.1998. The petitioner was actually detained on 8.1.1999 pursuant to the said order of detention.
3. Mr. Dushyant Dave, learned senior counsel for the petitioner, submitted that there is no restriction with respect to possession of white colour kerosene and yet in the grounds of detention it is stated that “for storage or consumption of the white coloured kerosene, you are not having any permit of licence/parvenu either in your name or in the name of the firm”. He submitted that this statement in the grounds of detention shows non-application of mind and a casual approach by the District Magistrate while passing the order of detention. During the hearing of this peti-tion Mr. Dholakia, learned senior counsel appearing for the District Magistrate, stated that really there is no restriction regarding possession, storage and use of white kerosene by con-sumers. But he submitted that the white colour kerosene which was found from the petitioner’s possession was really blue coloured kerosene turned into white and it was in that context the Dis-trict Magistrate stated in the grounds of detention that in respect of the said quantity of white kerosene the petitioner did not have any licence or permit. What is submitted by Mr. Dholakia appears to be correct and, therefore, the contention raised by Mr. Dave in this behalf deserves to be rejected.
4. It was next contended by Mr. Dave that the entire quantity of kerosene found from the possession of the petitioner was pur-chased under bills from M/s. Purvi Petroleum, which firm is an authorised dealer, and the petitioner had paid proper price for purchasing the kerosene. He had purchased the entire quantity of kerosene at Rs. 9/- per litre which was the market price for white kerosene at that time. The petitioner is having a candy factory and is using about 400 to 500 litres of kerosene every-day. He was thus not found in possession of that much quantity of kerosene which can be said to be excessive and more than his requirement and which could lead to any adverse inference. He was always purchasing kerosene from M/s. Purvi Petroleum and that fact is also mentioned in the grounds of detention and utilised by the District Magistrate for inferring collusion with M/s. Purvi Petroleum. Mr. Dave submitted that the petitioner had produced bills when his candy factory was raided and had explained to the officers that he did not know that there was any restriction regarding storage and use of blue coloured kerosene. Therefore, though the petitioner could have been prosecuted under the Gujarat Petroleum Products (Licensing Control and Stock Declaration) Order, 1979 or the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1983, this was not a case justifying passing of an order of detention against the petition-er.
5. As mentioned in the grounds of detention the petitioner is having a sugar candy factory and he has been purchasing kerosene, for use in his factory, from M/s. Purvi Petroleum since a long time. From what is stated in the grounds of detention and the reply Affidavit filed by the District Magistrate it becomes clear that the satisfaction of the District Magistrate that the peti-tioner was in collusion with M/s. Purvi Petroleum was based upon only two circumstances, namely, (1) the petitioner had been purchasing kerosene from M/s. Purvi Petroleum since a long time and (2) the kerosene which was found in petitioner’s possession on 4.7.1998 was sold under the bills as free sale white kerosene. There was no material before the District Magistrate to show that sufficient quantity of white kerosene was not available in the market in or about July 1998 and that M/s. Purvi Petroleum was not authorised to sell white kerosene. The petitioner had paid the market price for purchasing kerosene. The whole quantity of kerosene was purchased @ Rs. 9/- per litre and not at the subsi-dised rate at which blue kerosene was sold. It is also nobody’s case that the bills issued by M/s. Purvi Petroleum did not re-flect the correct quantity sold and the correct price charged. In view of these facts and circumstances and in absence of any material to show that the petitioner in fact knew that blue coloured kerosene was sold at subsidised rates and that it was meant for distribution only amongst weaker section of the society for cooking and illumination purposes, it is difficult to appre-ciate how the District Magistrate could have genuinely satisfied himself about any collusion between the petitioner and M/s. Purvi Petroleum. It may be that M/s. Purvi Petroleum was dishonestly selling blue coloured kerosene to those not entitled to it and was thus indulging in black marketing of blue coloured kerosene; but, there was hardly any reason for the petitioner to collude with it. There was no necessity for him to do so. There was also no material before the Detaining authority to show that the peti-tioner had in past committed any illegal act as regards posses-sion, storage and use of blue coloured kerosene. All these relev-ant aspects were not considered by the District Magistrate before passing the detention order. Therefore, the satisfaction arrived at by him cannot be said to be reasonable and genuine. An order of detention passed upon such vitiated satisfaction deserves to be set aside.
6. In the result, we allow this writ petition, quash and set aside the impugned order of detention and direct that the peti-tioner be set at liberty forthwith, unless his presence is re-quired in jail in connection with some other case.
