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Harilal Bansu Kewat Vs. State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petition No. 299 of 1982
Judge
Reported in1983(1)BomCR569
ActsPrevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 - Sections 3(1) and 3(2); Maharashtra Cement (Licensing and Control) Order, 1973
AppellantHarilal Bansu Kewat
RespondentState of Maharashtra and anr.
Appellant AdvocateT.H. Sardar, Adv.
Respondent AdvocateM.R. Kotwal, P.P.
DispositionPetition allowed
Excerpt:
.....gains in a manner which may directly or indirectly defeats or tend to defeat the provisions of essential commodities act, 1955 (as amended upto date) and maharashtra cement (licensing and control) order, 1973, (as amended upto date). you have been thus indulging in the anti-social activities of obtaining a large quantity of cement through unfair means with a view to sell the same in black market. ' 4. as mentioned above, the impugned order is passed under section 3(1) of the prevention of black marketing and maintenance of supplies of essential commodities act, 1980. this section empowers 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 purpose of this section..........of the petitioner in the first two raids are completely silent on both these aspects of the matter. in the third case the report was not received till the proposal for detention was made. in view of this, there was absolutely no material before the detaining authority to come to the conclusion that the petitioner was dealing in cement with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of the cement control order and the essential commodities act. the detaining authority has completely ignored this aspect of the matter. in view of this non-application of mind to the most vital aspect of the matter, the detention order cannot be sustained. in view of this finding it is not necessary to consider other challenges to the.....
Judgment:

M.S. Jamdar, J.

1. Petitioner Harilal Bansu Kewat is detained by virtue of an order dated 21st April, 1982 passed by the Commissioner of Police, Greater Bombay in exercise of the powers conferred under sub-section (1) read with Clause (b) of sub-section (2) of section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 with a view to Preventing the petitioner from acting any manner prejudicial to them maintenance of supplies of commodities essential to the community.

2. The detention order is passed on the basis of recovery of cement bags from the possession of the petitioner on three different occasions in three different raids carried out by the Crime Branch (Control), C.I.D., Bombay. In the first raid 78 gunny bags each containing 50 kgs cement were recovered from the possession of the petitioner from a wooden hut at Sardar Nagar, Sion Koliwada, Transit Camp, Pipe Line, behind Santoshi Mata Temple, Bombay on 29th April, 1980. On the second occasions 10 bags watch containing 50 kgs cement were recovered from the possession of the petitioner in the raid carried out on 21-10-1980 on a temporary structure bearing Municipal No. C-183 Sardar Nagar, Mukundrao Ambedkar Road, Sion Koliwada, Raoli Camp, Bombay. In the third raid carried out on 30-3-1982, 22 bags of cement were recovered from the possession of the petitioner from an unauthorised structure situated next to Jayanti Grain Stores, Raoli Camp, Sion Koliwada, Bombay. As the petitioner had no licence to carry on business as stockists as contemplated by Clause (3) of the Maharashtra Cement (Licensing and Control) Order, 1973 nor a licence to acquire cement as contemplated by Clause 15 of the said order and the quantity in his possession exceeded the maximum prescribed under Clause 8 of the said order, the petitioner was prosecuted for offences under Clauses 3, 8 and 15 of the aforesaid Maharashtra Cement (Licensing and Control) Order read with section 7 of the Essential Commodities Act, 1955 in respect of each of the raids carried out in the premises mentioned above. The petitioner was interrogated during the investigation of all the three cases and when questioned about the source of the cement found in his possession the petitioner in his statement in the first case viz. C.R. No. 78/80 stated that he had purchased the cement, which according to him was sweeping cement, from unknown lorry drivers. During the interrogation in the second case viz., C.R. No. 186/80 lodged in respect of the raid carried out on 21-10-1980 the petitioner admitted that he was conducting a business of selling bricks, sand and loose cement to the needy customers in the locality and that he was purchasing loose cement from the motor lorry drivers who used to deliver cement bags to the permit holders.

3. All the documents pertaining to the investigation in the three cases including the statements of the petitioner were placed before the Detaining Authority and on the basis of that material the Detaining Authority arrived at the following conclusion :-

'From the facts mentioned above, it would clearly indicate that you have been knowingly indulging in the acts of obtaining cement through unfair means for the purpose of selling the same in black market for monetary gains in a manner which may directly or indirectly defeats or tend to defeat the provisions of Essential Commodities Act, 1955 (as amended upto date) and Maharashtra Cement (Licensing and Control) Order, 1973, (as amended upto date). You have been thus indulging in the anti-social activities of obtaining a large quantity of cement through unfair means with a view to sell the same in black market. These activities of yours are prejudicial to the maintenance of supplies of commodities essential to the community.'

4. As mentioned above, the impugned order is passed under section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. This section empowers 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 purpose 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 and the District Magistrates and the Commissioner of Police to make an order directing the detention of a person, if satisfied, 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 so. The explanation to section 3(1) gives the meaning attached to the expression 'acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community' as follows:-

'(a) omitting or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955 (10 of 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) which is an essential commodity as defined in the Essential Commodities Act, 1955 (10 of 1955) or

(ii) with respect to which provisions have been made in any such other law as in 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.'

It is thus clear that unless a person commits or instigates any person, to commit any offence punishable under acts mentioned in Clause (a) or deals in any commodity mentioned in sub-Clauses (i) and (ii) of Clause (b) of section 3(1) with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of the law mentioned in Clause (a), he cannot be detained under section 3(1).

5. Admittedly all the three cases filed against the petitioner are pending and hence Clause (a) of section 3(1) is not attracted. The detention order is clearly one under section 3(1)(b), which in this case, contemplates dealing in cement with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of the Essential Commodities Act read with the Maharashtra Cement (Licensing and Control) Order, 1973.

6. The Maharashtra Cement (Licensing and Control) Order, 1973, the provisions of which are allegedly committed breach of by the petitioner, is applicable to 'Cement' which is defined in Clause 2(a) of the said Order. The definition of cement given in the said clause is as follows:

'Cement means any variety of cement manufactured in India, and includes portland, pozzolana cement, blast furnace slag cement, water proof (hydrophobic) cement, rapid hardening cement, low heat cement, masonary cement and grey cement of specific surface not less than 3500 cm. 2/g, but does not include oil well cement and white and coloured cement (other than grey Portland cement).'

In view of the definition, no person can be detained for black marketing in cement unless it is established that the cement is of any of the varieties mentioned in Clause 2(a) of the aforesaid order and in manufactured in India. The reports of the Chemical Analyser in respect of the cement recovered from the possession of the petitioner in the first two raids are completely silent on both these aspects of the matter. In the third case the report was not received till the proposal for detention was made. In view of this, there was absolutely no material before the Detaining Authority to come to the conclusion that the petitioner was dealing in cement with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of the Cement Control Order and the Essential Commodities Act. The Detaining Authority has completely ignored this aspect of the matter. In view of this non-application of mind to the most vital aspect of the matter, the detention order cannot be sustained. In view of this finding it is not necessary to consider other challenges to the detention order.

7. In the result, the petition is allowed. Rule is made absolute in terms of prayers (a) and (b) of the petition. The detention order dated 21st April, 1982 is quashed and it is directed that the petitioner be released from detention immediately unless required in some other case.


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