W.P.(Crl.) No. 55 of 2004. Case: Chandan Lahon Vs Union of India (UOI) and Ors.. Guwahati High Court

Case NumberW.P.(Crl.) No. 55 of 2004
CounselFor Appellant: G.N. Sahewalla, A.K. Goswami and A. Das, Advs. and For Respondents: S. Ali, S.S. Ali and H. Rahman, Advs.
JudgesAftab H. Saikia and R.B. Misra, JJ.
IssuePrevention of Black - Marketing, Prevention of Black - Maintenance of Supplies of Essential Commodities Act, Prevention of Black - 1980; Essential Commodities Act, 1955; Petroleum Act - Section 23, 24; Maintenance of Internal Security Act, 1971 - Sections 3(1), 3(2), 8; Indian Penal Code (IPC) - Sections 19, 34, 120(B), 370, 379, 397, 427, 471,...
Citation2005 (3) GLT 645
Judgement DateMarch 03, 2005
CourtGuwahati High Court

Judgment:

R.B. Misra, J.

  1. Heard Mr. G.N. Sahewalla, learned Senior Counsel and Mr. A.K. Goswami, learned Senior Counsel assisted by Mr. A. Das, learned Counsel for the Petitioner. Also heard Mr. S. Ali, learned Additional Advocate General, Assam assisted by Ms. S.S. Ali, learned Govt. counsel on behalf of State-Respondents. Also heard Mr. H. Rahman, learned Assistant Solicitor General of India on behalf of the Union of India.

  2. In this writ petition, the detention order dated 21.9.2004 passed in reference to Section 3(1) of the Prevention of Black-Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (here-in-after referred to as the 'Act') by the District Magistrate, Sivsagar (Annexure-1 to the writ petition) and the grounds of detention (Annexure-2 to the writ petition) are under challenge.

  3. The facts necessary for adjudication of the present writ petition in conspectus are that in reference to the information received from the Superintendent of Police, Sivsagar along with Dossier, First Information Report (FIR), Seizure List and recorded statement of the Petitioner (Shri Chandan Lahan) in connection with eight criminal cases in reference to different Sections of Indian Penal Code as well as of the Essential Commodities Act, 1955 (for short E.C. Act) read with Section 23 / 24 of the P. Act, it has been made to appear to the District Magistrate, Sivsagar that the detenu/Petitioner was involved in the activities of pilfering crude oil which were found to be prejudicial to maintenance of supply of commodities essential to community and such action of the Petitioner was punishable under the E.C. Act., therefore, on being satisfied, the detention of the Petitioner Under Section 3(1) of the 'Act' was found necessary with a view to prevent him from acting in above noted activities. The District Magistrate, Sivsagar has passed a detention order dated 21.9.2004 and had duly served the same to the Petitioner along with grounds of detention with an indication to the detenu/Petitioner to submit his written representation, if any, to the State Government as well as to the Government of India. In reference to the demand dated 22.9.2004 of Petitioner, legible copy of documents were furnished to him. On receiving the detention order dated 21.9.2004 by the Commissioner and Secretary, Department of Food and Civil Supplies, Government of Assam on 24.9.2004, the same was processed through the Chief Secretary, Hon'ble Minister of Food and Civil Supplies and Hon'ble Chief Minister and the approval of the detention order was finally made on 29.09.2004 by the State Government. The representation dated 6.10.2004 of the detenu/Petitioner through Jail Superintendent, Sivsagar was received by the District Magistrate on 7.10.2004, who, along with his comments, had forwarded the same to the State Government on 10.10.2004 which was received by the State department on 11.10.2004 and on the same day the Commissioner and secretary to the Government of Assam, Department of Food and Civil Supplies forwarded along with his parawise comments to the Secretaries to the Government of India, Ministry of Consumer Affairs, Food and (Public Distribution), as well as Ministry of Home Affairs and also to the Secretary, Advisory Board constituted under the 'Act'. In reference to the communication dated 13.10.2004 of Government of India, the representation of the detenu/Petitioner, was rejected on 15.10.2004 by the State Government and accordingly the same was communicated to the Petitioner on 18.10.2004. The State Government has finally passed an order dated 26.10.2004 confirming the detention order passed by the District Magistrate for 6(six) months with effect from 21.9.2004.

  4. The Petitioner had initially pleaded in his writ petition that he was not supplied the relevant documents and the grounds of detention. The grounds were vague, and not supported by the basic facts and materials, the Petitioner is not named in the FIR, the Petitioner has not been afforded the earliest opportunity of making his representation against the detention order in view of Article 22(5) of the Constitution of India. According to the Petitioner passing of detention order in these facts and circumstances was by way of non-application of mind and the subjective satisfaction having been arrived at by the detaining authority was on vague and irrelevant grounds and materials, the detention order is bad, illegal and therefore is to be quashed.

  5. Affidavit-in-opposition has been filed to controvert the statements and contentions made in the writ petition by asserting that in reference to the definite information and materials and on existing grounds for involvement of the Petitioner in criminal cases under the Indian Penal Code and E.C. Act and on subjective satisfaction of the District Magistrate, the detention order in question passed was duly served to the Petitioner along with the grounds of detention and after careful consideration by different relevant authorities i.e. by the State Government as well as by the Government of India, rejection of the representation of the Petitioner was duly conveyed to the detenu/Petitioner.

  6. It has been argued on behalf of the Petitioner that the detention order is bad for the following reasons:

    (a) The detaining authority has passed the detention order on irrelevant grounds;

    (b) The detention order is vague;

    (c) Among the grounds taken for passing the detention order, even if one ground alone is declared to be bad or illegal for its irrelevancy or vagueness, the entire detention order shall have to be set aside.

  7. The detention order dated 21.9.2004 has referred following eight offences:

  8. Kamargaon P.S. Case No. 32/04 Under Section 120(B) / 379 / 471 / 472 IPC R/W Section 7(1)(C) E.C. Act 1955 R/W Section 23 / 24 P. Act.

  9. Amguri P.S. Case No. 53/98 Under Section 379 / 427 / 34 IPC

  10. Bokota Nemuguri P.S. Case No. 6/2003 Under Section 379 / 511

  11. Halwatig P.S. Case No. 25/03 Under Section 379/IPC

  12. Nazira P.S. Case No. 105/03 Under Section 379 / 511 IPC

  13. Demow P.S. Case No. 64/03 Under Section 379 / 120(B) 19 PC R/W Section 7(1)(C) E. Act 1955, R/W Section 23 / 24 P. Act

  14. Sivsagar P.S. Case No. 27/02 Under Section 120(B) / 370 IPC and R/W Section 3 P.D.P.P. Act, 1984

  15. Nazira P.S. Case No. 39/03 Under Section 379 / 511 IPC

  16. Article 22(5) of the Constitution of India is provided as below:

    (5) When any person is detained in pursuance of an order made 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.

  17. Section 3 of the 'Act' is provided for convenience as below:

  18. Power to make orders detaining certain persons-(1) The Central Government or a State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government specially empowered for the purposes of this Section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government specially empowered for the purposes of this Section by that Government, may, if satisfied, with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community it is necessary to do, make and order directing that such person be detained.

    Explanation: For the purposes of this Sub-section, the expression "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" means-

    (a) Committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955 or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in, any commodity essential to the community; or

    (b) Dealing in any commodity-

    i. Is an essential Commodity as defined in the Essential Commodities Act, 1955, or

    ii. With respect to which provisions have been made in any such other law as is referred to in Clause (a).

    With a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid.

    (2) Any of the following officers, namely:

    (a) District Magistrates;

    (b) Commissioners of Police, wherever they have been appointed, may also, if satisfied as provided in Sub-section (1), exercise the powers conferred by the said Sub-section.

    (3) When any order is made under this Section by an officer mentioned in Sub-section (2), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the mean time it has been approved by the State Government.

    Provided that where under Section 8 the grounds of detention are communicated by the authority making the order after five days but not later than ten days from the date of detention, this Sub-section shall apply subject to the modification that for the words "twelve days", the words "fifteen days" shall be substituted.

    (4) When any order is made or approved by the State Government under this Section or when any order is made under this Section by an officer of the State Government not below the rank of Secretary to that...

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