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Yusufbhai Mahamud Hafezi Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1983)1GLR433
AppellantYusufbhai Mahamud Hafezi
RespondentState and ors.
Cases Referred(See State of Gujarat v. Adam Kasam Bhaya
Excerpt:
.....of supplies of commodities essential to the community. (2) there was failure on the part of the detaining authority to consider the possibility of launching a criminal prosecution against the detenu in regard to the alleged breaches of law and commission of offences; 5. in our opinion, the petitioner's challenge based on the first ground above is well-founded. xxxxx xxxxx xxxxx(14) in this maner, from the entire facts set out above, it clearly transpires that you were acting as an intermediary for the illegal disposal of cement in collusion with assistant engineers shri d. furthermore, from the facts set out above it very clearly appears that you are habituated to commit such offences since long time. 8. before we proceed to consider the challenge formulated under the first head, it..........in the grounds furnished to the petitioner, no particulars are furnished with regard to such past activities of the petitioner and, therefore, the petitioner had no reasonable opportunity to meet such an allegation;(2) there was failure on the part of the detaining authority to consider the possibility of launching a criminal prosecution against the detenu in regard to the alleged breaches of law and commission of offences; since the mind of the detaining authority was not applied to the said vital and material question before reaching its subjective satisfaction with regard to the necessity to detain the petitioner, the subjective satisfaction was not arrived at in accordance with law.5. in our opinion, the petitioner's challenge based on the first ground above is well-founded......
Judgment:

P.D. Desai, J.

1. The petitioner has been detained by the second respondent (District Magistrate, Surat) in exercise of the powers conferred by Sub-section (2) of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as 'the Act') upon being satisfied that the detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. The order of detention, Annexure 'A', is dated September 10 1982. The petitioner was taken under detention on the same day. The grounds of detention, Annexure 'C dated September 10, 1982, were served upon the petitioner when he was taken under detention. The petitioner made a representation on September 17, 1982 to the first respondent (State of Gujarat) against his detention. The representation was considered by the first respondent and it was rejected on September 21, 1982, and the petitioner was duly informed about the same. On October 5, 1982, the petitioner instituted the present petition challenging the detention order. The petition came up for preliminary hearing on October 6, 1982. On that day Rule was issued on the petition and it was made returnable on October 13, 1982. The petition has now reached hearing before this Court, and it is being disposed of by this Judgment.

2. The petitioner herein is alleged to have been involved as an intermediary in the clandestine disposal of 600 bags of cement received for the purpose of being used for the irrigation project under the control of Jhuj Head Works, Division No. 1, Vansda, District Bulsar. Those 600 bages of cement were removed in two consignments on two different dates from the godowns situate at or nearabout Dharampur. The first lot of 200 bags of cement was removed from the godown on June 28, 1982 in a motor truck bearing No. G.T.T. 5059 and the cement bags were delivered at a site known as Diamond Nagar in village Laskana situate at a distance of about 4 kilometres from Kamerj Cross Roads. At that site one Omprakash Gulabchand Varma, alias Homjibhai Contractor, Had taken up a contract to construct buildings and the cement was diverted for being used for such construction. The second lot of 400 bags of cement was removed from the godown in two trucks, bearing numbers G.T.T. 5059 (which was used on the previous day) and G.T.C. 4570, on the next day, i.e. June 29, 1982, and it was meant to be supplied to Homjibhai Contractor. However, on the night of June 29, 1982, both the trucks were intercepted near a bus stand at village Bajipura within the jurisdiction of Valod Police Station, and, upon investigation which followed, the conspiracy to divert the cement from the Irrigation Project to private use for personal gain came to light. In the course of investigation, it transpired that Homjibhai Contractor had agreed to pay Rs. 52/- per bag to the petitioner, who, in turn, had agreed to pay Rs. 43/- per bag to the two Assistant Engineers incharge of the office of Jhuj Head 'Works, Division No. 1, Vansda, in collusion with whom the entire transaction was planned and concluded. It is under these circumstances that the order of detention has come to be passed against the petitioner.

3. The two Assistant Engineers, who are said to have been involved in the conspiracy and who too were taken in detention along with the petitioner, had instituted Special Criminal Application Nos. 1398 of 1982 and 1399 of 1982, challenging their orders of detention. These writ petitions have been disposed of by judgments such have concluded today. In the course of the judgment rendered in Special Criminal Application No. 1398 of 1982 (Dalpatbhai Bhikhabhai Patel v. Dist. Magistrate Surat) all the material facts upon which reliance has been placed by the detaining authority in order to detain all the persons concerned with these transactions have been set out in detail. Since the present petition is a companion matter, inasmuch as the detention herein is founded on the same facts and circumstances, we are not cotting out again in detail the substance of the allegations against the petitioner as contained in the grounds of detention. It is not in dispute that the grounds of detention herein are identical with the grounds of detention in those two cases, save and except that the grounds in the instant case are formulated as if they are addressed to the petitioner, whereas in the other two cases the grounds were so worded as to have been addressed to those respective detenus. We shall at a later stage reproduce only the material portion of the grounds. For the sake of brevity, therefore, the relevant portions of the judgment rendered in Special Criminal Application No. 1398 of 1982 may be read as a part and parcel of this judgment.

4. In the memo of petition, the order of detention is challenged on diverse grounds. However, at the hearing, the challenge was confined to the following two grounds:

(1) The grounds furnished to the petitioner show in unmistakable terms the satisfaction of the detaining authority with regard to the need of detaining the petitioner was reached, inter alia, on the basis of the alleged activities carried on by the petitioner since long time past with a view to prejudicially affecting the maintenance of supplies of commodities essential to the community, more particularly, cement; such satisfaction is vitiated because:

(a) the relevant portion of the grounds ex facie discloses non-application of mind on the part of the detaining authority on this material and vital aspect;

(b) there was no material whatever before the detaining authority, so as to enable it to reach such a conclusion;

(c) on the material, if any, before the detaining authority, it could not rationally have reached such a conclusion, and

(d) in the grounds furnished to the petitioner, no particulars are furnished with regard to such past activities of the petitioner and, therefore, the petitioner had no reasonable opportunity to meet such an allegation;

(2) There was failure on the part of the detaining authority to consider the possibility of launching a criminal prosecution against the detenu in regard to the alleged breaches of law and commission of offences; since the mind of the detaining authority was not applied to the said vital and material question before reaching its subjective satisfaction with regard to the necessity to detain the petitioner, the subjective satisfaction was not arrived at in accordance with law.

5. In our opinion, the petitioner's challenge based on the first ground above is well-founded. Under the circumstances, it is not necessary to express any opinion on the second ground of challenge. Though we are not expressing any opinion on the second ground of challenge, at the request of the petitioner, we are placing on record that upon examination of the original file, where in the proposal with regard to the petitioner's detention has been processed, it does not appear that possibility of criminal prosecution was present to the mind of the detaining authority. The detaining authority has recorded a note in which the aspect with regard to prosecution is not shown to have been considered. We may also mention that the return in the instant case has not been filed by the detaining authority, but by the In-charge Collector and District Magistrate, and that his affidavit is based on the information derived by him from the record.

6. It would be convenient at this stage to extract the material portions of the grounds of detention, since the ultimate decision of the petition turns upon the averments which find place in those portions. Paragraphs 3 and 14 of the grounds of detention are reproduced hereinbelow duly translated from Gujarati:

(3) In collusion with Shri D.B. Patel and Shri R.R. Parmar, Assistant Engineers of Jhuj Head Works, Vansda, you are acting as an intermediary for illegal disposal of cement in blackmarket obtained through them, and you are selling such cement in blackmarket to Shri Homjibhai, Building Contractor of Surat. This is proved from the following facts:

xxxxx xxxxx xxxxx(14) In this maner, from the entire facts set out above, it clearly transpires that you were acting as an intermediary for the illegal disposal of cement in collusion with Assistant engineers Shri D.B. Patel and Shri R.R. Parmar, and that the cement was being sold through you to Shri Homjibhai, Building Contractor of Surat. In this way, in collusion with each other, (you) are regularly since a long time illegally misappropriating the cement and thereby encouraging by abetment black marketing in cement. Furthermore, from the facts set out above it very clearly appears that you are habituated to commit such offences since long time. Therefore, there is every likelihood of your continuing such offences until you are detained.

7. Be it reiterated at this stage that paragraphs 4 to 12 of the grounds of detention contain the details about the removal and disposal of 600 bags of cement from the godown and transportation of such cement for illegal disposal on two days, namely, June 28/29, 1982, and the modus operandi adopted by the petitioner and the co-detenus to achieve the said purpose. Paragraph 13 contains recitals to the effect that the petitioner was guilty of breach of Clauses 3, 20 and 22 of the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981, and that thereby he had committed an offence punishable under Section 3 read with Section 7 of Essential Commodities Act, 1955, in view of the role played by him in the clandestine disposal of the cement in black market.

8. Before we proceed to consider the challenge formulated under the first head, it would be appropriate to recall that so far as the Act is concerned, the detaining authority is thereunder empowered to exercise the power of detention upon being satisfied that it is necessary to detain the person concerned, '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 settled law that the exercise of such power is dependent on the subjective satisfaction of the detaining authority and that the High Court in exercise of its writ jurisdiction cannot, on a review of the grounds, substitute its own opinion for that of the authority. This does not mean, however, that the subjective satisfaction of the detaining authority is wholly immune from judicial reviewability. Judicial decisions have carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be judicially scrutinised. Since subjective satisfaction is a condition precedent for the exercise of the powers of detention, the High Court can always examine whether the requisite satisfaction is arrived at by the authority. Several grounds have been evolved by judicial decisions for holding that no subjective satisfaction is arrived at by the authority as required under the statute. To illustrate, if there is non-application of mind to material and vital facts, if the subjective satisfaction is based on nonexistent or irrelevant materials, if the authority had come to a conclusion so unreasonable that no reasonable authority could have ever come to it, then a legitimate inference may fairly be drawn that the exercise of the power of detention is vitiated because the subjective satisfaction which the law enjoins the detaining authority to arrive at has not been legitimately arrived at (see Khudiram Das v. State of West Bengal : [1975]2SCR832 ). While reviewability is thus not entirely excluded, the demarcating line between the permitted and prohibited areas of inquiry, which is slender but certain, must not be allowed to be blurred. Therefore, while considering the questions, such as, whether there is non-application of mind or whether the subjective satisfaction is based on non-existent or irrelevant materials or whether the detaining authority has come to a conclusion so unreasonable that no reasonable authority could ever have come to it the inquiry must be strictly confined within that narrow compass; it cannot be permitted to be projected into the forbidden field of evidence. The High Court cannot, therefore, go further and examine whether the material was adequate or not. The High Court can examine the material only for the purpose of seeing whether the order of detention has been based on materials relevant to the subject-matter and whether, on the basis of the material on record, it would be ever possible for a rational person to arrive at the requisite satisfaction (See State of Gujarat v. Adam Kasam Bhaya : 1981CriLJ1686 ). Bearing in mind these constraints on our jurisdiction, we proceed to examine the first ground of challenge.

9. Now, a bare reading of paragraph 14 of the grounds of detention, which has been extracted above and which purports to record the detaining authority's prognosis about the probability of the petitioner continuing to carry on his objectionable and criminal activities, shows that the satisfaction as to the proclivity of the petitioner has been reached not merely on the basis of the two instances of clandestine dealings in 600 bags of cement on June 28/29, 1982, but also on the past record of his objectionable activities of similar nature. The petitioner, therefore, contended - rightly, in our opinion that paragraph 14 furnishes clear and cogent evidence pointing in the direction that the subjective satisfaction with regard to the need to detain the petitioner has been arrived at by the detaining authority by taking into account two factors; the role played by the petitioner as an intermediary in the disposal of 600 bags of cement in the month of June, 1982, and the petitioner's involvement in such activities since long time past. The petitioner further contends that the conclusion as to his involvement in such activities since long time past, which is stated to have been arrived at 'from the entire facts set out above', that is, in die preceding paragraphs of the grounds, is impossible of being drawn from those particulars and facts because none of the facts and particulars set out in the grounds throws any light on the past activities of the petitioner - much less on the activities of such nature - and that, therefore, there is total non-application of mind on the part of the detaining authority on a material and vital aspect having direct and immediate bearing on its subjective satisfaction. The petitioner also contends that a part from the aforesaid infirmity and even assuming that it is permissible to the detaining authority to travel beyond the specific instances referred to in the grounds, and to justify its conclusion with regard to the petitioner's past activities of such nature on the basis of the other materials on record (copies whereof are supplied to the petitioner), there is not an iota of evidence emerging from the entire materials on record which can lead to such a conclusion. In other words, according to the petitioner, the conclusion is based on non-existent material. In any case, urges the petitioner, there is nothing in the materials on record on the basis of which a reasonable authority could have ever come to the conclusion that the petitioner was carrying on such activities since long time past. The petitioner submits that the exercise of power of detention in the instant case is vitiated on account of the aforesaid infirmities, in addition to the infirmity that the material part of the grounds is vague and furnishes no particulars whatever in regard to the petitioner's past involvement in such activities.

10. The detaining authority strenuously contends on the other hand that the submission made by the petitioner is not valid, and that the prognosis about the probability of the petitioner indulging in future in such activities, which has been arrived at inter alia, on the basis of his involvement in such activities since long time past, is more than justified by the material on record, The detaining authority submits in the first place, that the petitioner's involvement in the well-planned conspiracy relating to the sale of cement in black market through his intervening agency, and the modus operandi adopted by the co-conspirators justify, of their own force, the conclusion that the petitioner must have been carrying on such activities in the past. In the next place, urges the detaining authority, the fact that the petitioner's usual line of trade was not brokerage in cement, that large amount of money passed through his hands by way of consideration of 600 bags of cement, that large quantities of cement were attempted to be disposed of in black market on the two occasions in question after entering into a well-planned conspiracy and that the removal and transport of cement on those two occasions was arranged and accompliced with such perfection, leads to the clear inference that the petitioner was regularly involved as an intermediary in diversion of the cement procured from the Irrigation Project to black marketeers. According to the detaining authority, these circumstances furnish the relevant materials on the basis of which the detaining authority could have rationally reached the conclusion with regard to the petitioner's involvement in such clandestine activities since long time past.

11. Having given our most anxious consideration to the rival contentions urged before us and having examined their validity in the light of the well settled legal position bearing upon the jurisdiction of the Writ Court in a proceeding challenging the validity of a detention order, we are clearly of the opinion that the petitioner's contention is well founded and that it deserves to be accepted in preference to that of the detaining authority.

12. There is no manner of doubt that in the instant case the subjective satisfaction in regard to the need to detain the petitioner has been arrived at on the basis of the present and past activities of the petitioner as an intermediary for the clandestine disposal in black market of large quantities of cement for the use in irrigation project. By present activities, we mean the involvement the petitioner in the removal and disposal of 600 bags of cement on 28th and 29th of June 1982 in regard to which there was material before the detaining authority. As regard the involvement of the petitioner in such activities 'since long time past', the averments in paragraph 14 of the grounds of detention clearly and unmistakably indicate that detention clearly and unmistakably indicate that the conclusion in that regard was reached by the detaining authority 'from the entire facts set out above', i.e. the facts and particulars mentioned in the preceding paragraphs of the grounds supplied to the petitioner. These paragraphs of the grounds relate only to the operation which resulted in the removal and disposal attempted disposal of 600 bags of cement in black market in the month of June 1982. It is manifest that there is nothing in those facts or particulars which would even remotely indicate that the petitioner was carrying on such nefarious activities in the past or since long time past. There is nothing even in the materials such as the statements of the witnesses referred to in the preceding paragraphs - there is none to which our attention was invited which can lead to such a conclusion. It was fairly conceded even by the learned Special Public Prosecutor that there was no express mention in any of the fads or particulars set out in the preceding paragraphs or the documents specifically referred to therein as regards the petitioners' actual involvement in such activities in the past The conclusion is inevitable, therefore, that on the basis of the facts or particulars set out in the grounds of detention or in the materials on record specifically mentioned therein, the conclusion as to the petitioner's involvement in such activities in the past or since long time past could not have been arrived at. Be it noted in this connection that even the petitioner's own statement as well as the statement of co-detenu D.B. Patel (Assistant Engineer) reveal that though they had acquaintance with each other for a period of about three years, the first occasion on which they talked with cash other with regard to the diversion of cement for the purpose of black marketing was sometime in the second or third week of June 1982. This would indicate that the conspiracy, if any, between the persons concerned was hatched for the first time about a fortnight or 10 days before the two incidents which resulted in removal of 600 bags of cement from Dharampur godown. Amongst other witnesses referred to in the grounds none has spoken a word about prior confebulation, i.e. prior to the second or third week of June 1982, amongst the alleged co-conspirators with regard to the diversion of cement of the Irrigation Project in black market for personal gain. Under the circumstances, there is no alternative, but to hold that there was total non-application of mind on the part of the detaining authority in regard to a vital and material fact stated in paragraph 14 upon which reliance is placed in arriving at the subjective satisfaction. This infirmity articulated in ground 1(a) raised by the petitioner, as set out hereinabove, is by itself sufficient, in our opinion, to vitiate the subjective satisfaction.

13. This, however, is not all. Assuming without conceding that a liberal View ought to be taken and that it should be open to the detaining authority to travel beyond what is specifically referred to in the grounds and to rely upon the record in order to draw sustenance for such a conclusion, we are clearly of the opinion' that there is no material whatever on the record on the basis of which the aforesaid conclusion could have been arrived at or, at any rate, the material even if there be any, was not such on the basis of which such a conclusion could have been possibly arrived at or could have been rationally reached. Our attention was not invited to any such material and no such material has been referred to in the return filed on behalf of the detaining authority although this challenge was specifically raised in the petition. Under the circumstances, the subjective satisfaction cannot be sustained even on that basis, and it must be held to have been vitiated by the infirmity articulated in ground 1(b) raised by the petitioner, as set out hereinabove.

14. It was forcefully contended on behalf of the detaining authority, however, that the detaining authority could have legitimately reached the conclusion that it arrived at having regard to several factors mentioned earlier, viz. (1) the petitioner's usual line of trade was not brokerage in cement, (2) large amount of money passed through his hands by way of consideration of bags of cement, (3) large quantities of cement were attempted to be disposed of in blackmarket on the two occasions in question after entering into a well-planned conspiracy, (4) removal and transport of cement on those two occasions was arranged and accomplished with perfection, and (5) the modus operandi adopted by the petitioner and the co-detenus to achieve the said purpose. We are unable to see how all those circumstances lend any support to the positive conclusion in regard to the petitioner's involvement in similar activities in the past. It is pertinent to note in this connection that the statement of the petitioner as well as that of the co-detenue, Assistant Engineer D.B. Patel, indicate only (i) that as a result of the talk between the petitioner and Homjibhai Contractor, which took place only a few days before June 28/29, 1982, the transaction of 600 bags of cement alone had taken place; and (ii) that the conspirdey, if any with regard to diversion of cement in black market was hatched between them for the first time only a fortnight or 10 days before June 28/29, 1982. No other adventure of such or similar nature is stated or shown to have been undertaken by the petitioner prior thereto. The circumstances relied upon by the detaining authority may at the highest show deep involvement of the petitioner in diversion of large quantities of cement on the two occasions in the month of June, 1982; they may also show that on those two occasions a systematic and well-planned effort was made by the two Assistant Engineers in collusion with the petitioner to divert the cement for personal gain for the use other than that for which it was meant. However, from those circumstances, it would be impossible to conclude that the petitioner was involved or was carrying on such activities in the past or since long time past.

15. It was then contended on behalf of the detaining authority that, at any rate, these circumstances could legitimately lead to a suspicion that the petitioner was indulging in such activities in the past and that such suspicion together with the actual involvement of the petitioner in the removal of large quantities of cement in the month of June 1982, would be sufficient to lead to the prognosis about the probability of the petitioner indulging in such activities in future. We are unable to see the relevance of this contention. A reference to paragraph 14 of the grounds of detention extracted above would show that the detaining authority has not proceeded on the basis of any suspicion as to the petitioner's involvement in such activities in the past. The detaining authority has reached the positive conclusion as regards the petitioner's involvement in such activities since long time past. What the detaining authority is required to show, therefore, is that it had materials before it on the basis of which it could have 'rationally reached the affirmative conclusion that the petitioner had been carrying on such activities in the past. There could have been some scope for the submission now made if the conclusion had been recorded in different language, such as, for example, 'it is inspected that you have been involved in similar operations in the past', 'or there are reasons to infer that you might have been carrying on such activities since long time past'.

16. We might mention that a similar question fell for consideration before a Division Bench of this Court in Special Criminal Application No. 340 of 1982, decided on July 29/30, 1982, under almost similar circumstances, and that an identical view was taken by the Court in that case. The petitioner in that case was alleged to have played an important role in the unauthorised disposal of imported neutralised palm oil for personal gain. The conspiracy in that behalf was hatched between the petitioner and a few others only a few days before the actual removal of large quantity of imported neutralised palm oil in a clandestine manner from Kandla to Bombay in 10 tankers. Still, however, in the material portion of the grounds of detention it was mentioned that the petitioner was carrying on such activities 'since long time past' and that there was every likelihood that he would continue to carry on such anti-social and objectionable (obstructionist) activities unless he was detained. The conclusion with regard to the petitioner's involvement 'since long time past' in such activities was stated to have been based on the facts set out in the earlier portion of the grounds of detention.

17. As in the present case, so in that case, none of the facts and particulars set out in the preceding portion of the grounds indicated that the petitioner there was involved in such nefarious activities 'since long time past.' Besides, there was no other material on record which could have rationally led to such a conclusion. Under the circumstances, the Division Bench, took an identical view and quashed and set aside the order of detention in that case on the ground of non-application of mind, perversity and lack of material. The learned Special Public prosecutor, while maintaining that the above infirmity, if any, was not fatal to the detention order, fairly conceded that the decision is Special Criminal Application No. 340 of 1982 squarely governs the present case, and that in the light of that decision, no other conclusion was possible in the present case.

18. In our considered view, therefore, there is no escape from the conclusion that there was really no material before the detaining authority on the strength of which it could have come to the conclusion or at any rate, rationally come to the conclusion with regard to the petitioner's involvement in such nefarious activities in the past or since long time past. Consequently, it must be held that the subjective satisfaction arrived at by the detaining authority in regard to the need to detain the petitioner, which is founded, inter alia, upon the carrying on of such activities on the part of the petitioner in the past is vitiated. Consequently, it must also be held that the exercise of the power of retention against the petitioner on the basis of such subjective satisfaction is illegal and ultra vires and that the order of detention must, therefore, be quashed and set aside.

19. The result therefore, the writ petition succeeds and it is allowed. The impugned order of detention is quashed and set aside. The petitioner is ordered to be set at liberty forthwith, so far as the present case is concerned. Rule made absolute in the aforesaid terms.


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