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Chandravati Fakirchand Zaveri Vs. the State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1982CriLJ1543; (1982)1GLR760
AppellantChandravati Fakirchand Zaveri
RespondentThe State of Gujarat and anr.
Cases ReferredSher Mohammad v. State of West Bengal
Excerpt:
- - the question then is, what is the sequitur and the question is no more res integra, the consequence of failure to comply with the requirement of a provision of this nature came up before the supreme court in sher mohammad v. we have pointed out how in the present case there has been a failure on the part of the state government to comply with section 3(4). judicial engineering prevents of breaches of constitutional dykes protecting fundamental freedoms. 3. the law as enunciated in the aforesaid decision clearly applies to the facts of the present case in the context of provisions which are in pari materia in all respects......date. the orders of detention passed by the district magistrate were subsequently approved by the state government. their cases came up before the advisory board which came to the conclusion that there was sufficient cause for the detention of the said persons. these five detenus have approached this court by way of the present batch of writ petitions under article 226 of the constitution of india and have challenged the impugned orders of detention on numerous grounds. it is not necessary to examine the various contentions incorporated in the writ petitions and the points raised in support of the challenge to the impugned orders of detention having regard to the fact that the petitioners are entitled to succeed on a short ground on admitted facts.2. the admitted facts are that the.....
Judgment:

M.P. Thakkar, C.J.

1. On the allegation that a shocking racket in black-marketing in cement obtained under false pretexts was being run by Directors of a private limited company known as Mitt & Meer Private Limited, three brothers, two of whom were the Directors of the said company, were detained pursuant to an order dated Oct. 23, 1981 passed by the District Magistrate at Surat in exercise of powers conferred by Sub-section (2) of Section 3 of the Prevention of Blackmarketing And Maintenance of Supplies of Essential Commodities Act, 1980 (the Act). A Supervisor of the said company was also detained in the same connection by an order passed on the same day. One Natwarlal Nanalal Modi, said to be acting as a middle-man, in connection with the aforesaid racket, was also detained under the same provision by the same authority by the order of the same date. The orders of detention passed by the District Magistrate were subsequently approved by the State Government. Their cases came up before the Advisory Board which came to the conclusion that there was sufficient cause for the detention of the said persons. These five detenus have approached this Court by way of the present batch of writ petitions under Article 226 of the Constitution of India and have challenged the impugned orders of detention on numerous grounds. It is not necessary to examine the various contentions incorporated in the writ petitions and the points raised in support of the challenge to the impugned orders of detention having regard to the fact that the petitioners are entitled to succeed on a short ground on admitted facts.

2. The admitted facts are that the order of detention in case of each of the five detenus was passed on Oct. 23, 1981 by the District Magistrate of Surat. As enjoined by Sub-section (3) of Section 3 of the Act, the order passed by the District Magistrate requires to be approved by the State Government within twelve days. The State Government approved the order of detention within the prescribed period of twelve days on Nov. 2, 1981. Now, Sub-section (4) of Section 3 enjoins that when any such order is made or approved by the State Government, the fact requires to be reported to the Central Government together with the grounds on which the order was made and such other particulars as, in the opinion of the State Government have a bearing on the necessity for the order. The relevant provision in so far as malarial reads as under:

(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 Government specially empowered under Sub-section (1), the State Government shall within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.

It would thus appear that if an order is made by the State Government, then the factum of making such order has to be reported to the Central Government within seven days. In case such order is made by a District Magistrate and it has been subsequently approved by the State Government as enjoined by Sub-section (3) of Section 3. a report in regard to such approval requires to be made to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order, within seven days. We are concerned with the latter part of Sub-section (4) which pertains to the reporting of the fact as regards approval of an order of detention on the part of the State Government to the Central Government within seven days. In the present case, admittedly, report to the Central Government has not been made within seven days of the approval of the detention. It will be recalled that the order of detention passed by the District Magistrate was approved by the State Government on Nov. 2. 1981. The report to the Central Government, was therefore required to be made within seven days thereof, that is to say, before Nov. 9, 1981. Admittedly, the fact of the approval accorded by the state Government to the order of detention was not communicated before Nov. 9, 1981, In fact, learned Public Prosecutor is obliged to concede that a detailed report regarding the detention was made only on Jan. 4, 1982, that is to say, nearly two months after the date on which approval was accorded. The learned Public Prosecutor of course called our attention to the fact that before the State Government accorded its approval on Nov. 2, 1981, a communication was sent by wireless to the Central Government in regard to the factum of the detention of the petitioners. That was however some time before the date on which approval was accorded by the State Government. What is obligatory on the part of the State Government is to report to the Central Government about the approval accorded by it within seven days of the date of according of approval. Admittedly, the report as regards the factum of according of approval on the part of the State Government was not communicated to the Central Government within seven days, in fact, the report was made nearly two months after the date of according of approval. The question then is, what is the sequitur and the question is no more res integra, The consequence of failure to comply with the requirement of a provision of this nature came up before the Supreme Court in Sher Mohammad v. State of West Bengal : [1975]3SCR154 . No doubt, the question arose in the context of Maintenance of Internal Security Act (1971). A provision analogous to the provision contained in Section 3 Sub-sections (3) and (4) of the Act is to be found in the Maintenance of Internal Security Act. The provision concerned in the said Act is also numbered as Section 3 Sub-section (4). The said provision has been quoted at page 2050 of the report. The Supreme Court after adverting to the said provision has adverted to the fact that in the case which came up before the Supreme Court, the communication to the Central Government had not been sent within seven days of the date of approval of the order of detention on the part of the State Government, In that case the order of detention was made on Nov. 21, 1972. The Stale Government approved it on Dec. 2, 1972. Thus, report to the Central Government ought to have been made between Dec. 2 and Dec. 9. 1972. It however appears that no such report was made. As in the present case, attention of the Supreme Court was called to the fact that a day prior to the dale of approval on the part of the Stale Government a communication had been sent to the Central Government. It was pointed out that the approval was accorded on Dec. 2, 1972 whereas a report to the Central Government was in fact made a day prior thereto, Dec. 1, 1972 in the context of these facts the Supreme Court came to the conclusion that since the report to the Central Government was made prior to the dale of approval, there was non-compliance of the requirements of Section 8 Sub-section (4). Says the Supreme Court: It is thus plain that the State Government could not have communicated the approval to the Central Government before the approval itself was made. Thereafter the Supreme Court has proceeded to observe that the consequence of the infringement of the aforesaid procedural safeguard would be that the order of detention would be rendered invalid and the detenu would be entitled to be released. The relevant passages from the judgment of the Supreme Court may be quoted (at p. 1752 of Cri LJ):

In short, there has been an infringement of the procedural safeguard. This Court has, in several rulings, held that the liberty of the citizen is a priceless freedom, sedulously secured by the Constitution. Even so, during times of emergency, in compliance with the provisions of the Constitution, the said freedom may be curtailed, but only in strict compliance with the statutory formalities which are vigilant concern of the courts to enforce. We have pointed out how in the present case there has been a failure on the part of the State Government to comply with Section 3(4). Judicial engineering prevents of breaches of Constitutional dykes protecting fundamental freedoms.

The order of detention is invalid and the detenu is liable to be released. The rule is made absolute. Rule made absolute.

3. The law as enunciated in the aforesaid decision clearly applies to the facts of the present case in the context of provisions which are in pari materia in all respects. It may be mentioned that the report to be made to the Central Government is not an idle formality, for Section 14 of the Act in terms provides for revocation of detention orders. Clause (a) of Sub-section (1) of Section 14 provides that notwithstanding that the order has been made by an officer of a State Government concerned a detention order may be revoked or modified not only by the State Government but even by the Central Government. On a combined reading of Sub-section (4) of Section 3 and Section 14 it would appear that the purpose of making report by the State Government to the Central Government accompanied by the grounds of detention and relevant particulars within the prescribed period of seven days is with a view that in a fit case the Central Government may exercise the power under Section 14(1)(a) to revoke such an order. Be that as it may, the point is concluded in favour of the detenus. Under the circumstances, the order of detention passed in each of the five petitions deserves to be quashed and set aside by reason of the fact that there has been an infringement of the procedural safeguard embodied in Sub-section (4) of Section 3 of the Act. The petitions are therefore allowed. The order of detention passed in each of the writ petitions is quashed and set aside. Each of the detenus shall be set at liberty forthwith.

4. The Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act has been chiselled in order to extend protection to the society from being starved of essential commodities and from being exploited by unscrupulous elements who feel no compunction in indulging in mal-practices, unmindful of the resultant miseries to the common man. In order to ensure that the provisions serve their purpose in practice, a high-powered Cell consisting of members who have made a close, concentrated and in-depth study of all the decisions rendered by the Supreme Court and notifications in regard to preventive detention, must be created. The presiding officer of the Cell must be aware of the latest decisions and must be able to brief the detaining authorities in regard to the law on the subject and the procedural safeguards insisted upon by the Courts. The Cell must prepare a note incorporating the propositions which emerge from the decision and enumerate the 'do's and don'ts.' It may also contain clear instructions in simple language indicating the procedural precautions required to be taken and update the same say every month. The note must also contain the enumeration of the leading cases and set out the ratio of each of the decisions which must be carefully called out and crystallized. Such a note must be got approved from the highest law officers and must be updated periodically in consultation with them. Only then those officers who have an occasion to exercise the powers would come to know what the law enjoins them to do or not to do and how to avoid technical pitfalls.

5. Petitions allowed. Rule made absolute. Each of the detenus concerned in each of the five petitions shall be released forthwith.


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