Z.K.SAIYED, J. - (1.)The petitioner came to be detained under the Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act, 1980 (for short PBM Act), by virtue of order passed by the District Magistrate, Gandhinagar, on 10.05.2010, in exercise of powers under Section 3(2) of the said Act. The detaining authority found that the petitioner's activities were prejudicial to the maintenance of supplies of commodities essential to the community and may result in black marketing of such commodities and, therefore, he is required to be immediately prevented from pursuing his activities by starting business in the name of his relative or associates. The detaining authority has further observed that if a complaint is lodged under Section 3, 7, 8 and 9 of the Essential Commodities Act, 1955, he may get himself released on bail or may obtain an injunction order and may continue his activities and, therefore, detention is the only effective remedy that can be resorted to. Ultimately, the order of detention was passed.
(2.)The said order is sought to be challenged in this petition under Article 226 of the Constitution of India on various grounds. However, learned advocate appearing for the petitioner, has restricted her arguments to the ground that the detaining authority has arrived at subjective satisfaction on extraneous material in absence of any cogent or concrete material to support such a conclusion. He has contended that there is no material to show that the detenu has committed the act, as contemplated under explanation of Section 3(1) of the Act, with a view to make a gain in any manner. He has contended that the detenu is an employee and is not directly or indirectly alleged to be inducted in the activities as mentioned in the order of detention. The detaining Authority has passed the impugned order on the basis of ex-parte statements of the persons and except the bare so-called statements, which was obtained under force and duress cannot be said to be any evidence and material to conclude that the petitioner has sold the stock of commodities meant for distribution to card-holders. He has contended that no statements of any card-holders are recorded to substantiate that they have not received their stock of essential commodities. Learned Advocate has also contended that the representation made on behalf of the detenu has not been placed and decided by the authority competent to deal with the representation and the same has not been considered in accordance with law and with proper application of mind and also not considered in conformity with Art. 22 of the Constitution of India. He, therefore, contended that the continued detention of detenu is vitiated and he may be ordered to be enlarged from the detention. He has also contended that for the same allegations as alleged in the grounds of detention, the authority has already registered F.I.R., being CR No. II 364 of 2010 with Naroda Police Station for the offences punishable under Sections 3, 7, 8 and 9 of the Essential Commodities Act and despite that for the same allegations the impugned detention order has been passed on 10.5.2010. It is contended that there was no material before the detaining Authority to reach to a conclusion that despite the filing of prosecution, the petitioner is likely to continue the similar kind of activities and, therefore, the detaining authority had no material to nurse any such apprehension that despite the filing of prosecution the detenu would continue similar activities. Learned advocate for the petitioner has contended that the detenu has made a representation to the authority and the some papers supplied to the detenu are illegible. Learned advocate for the petitioner has contended that there is a delay of about two months in passing the detention order. She has relied upon the judgment and order of this Court dated 20.08.2010 passed in Special Civil Application No.8143 of 2010. Learned advocate has also placed reliance upon the decision of the Hon'ble Apex Court in the case of SHASHI AGRAWAL v/s. STATE OF U.P., reported in 1988 SC 596.
(3.)Respondent Nos.1,2 and 3 are represented by learned A.G.P. Respondent No. 4- Union of India is represented by Mr. Shaikh, learned Standing Counsel.