Decided on February 28,1983



D.C.GHEEWALA - (1.) As both the petitioners have been detained by a preventive detention order and as both the petitions raise a common question they are being disposed of by us by a common judgment. The petitioners were holding licence for distributing foodgrains at their fair price shops at village Bharvada District Banaskantha. It was found that on 8-12-1982 the petitioners in between themselves obtained 90 bags of wheat from the government Civil Supplies Godown and instead of carrying those bags to their respective fair price shops transhipped those bags to Radhanpur and disposed of the same through one Mehta & Co. in open market and they were purchased by one Rajeshkumar Vardhilal Akhani. Complaints were received from the villagers and upon investigation it was found that the petitioners in order to destroy the evidence of what they had done purchased 90 bags from various other institutions loaded them in a truck and tried to cover up the loss which would have been detected in their respective fair price shops. The shops in the meanwhile on 9-12-82 were sealed and the truck which was carrying these newly purchased 90 bags was also attached. On the above facts the detaining authority passed an order dt. 31-12-82 and detained the petitioners under preventive detention. The petitioners have challenged the said detentions on numerous grounds and Mr. B. N. Patel the learned advocate appearing for the petitioners urged that there was a total non-application of mind on the part of the detaining authority inasmuch as he had never considered as to whether other less drastic remedies which could have been undertaken by the depart- ment would have served the purpose of preventing the petitioners from carrying on their nefarious activities. Mr. Patel also urged that this was a solitary incident and from that it was not proper for the detaining authority to jump to the conclusion that the petitioners have a propen- sity to indulge in those activities. All those persons from whom the petitioners had purchased the 90 bags in order to cover up the short-fall in their respective fair price shops were also initially detained but they were released. Mr. Patel however conceded that this by itself would be no ground to attack the present detention orders. However Mr. Patel took strong exception to this point that the order of the detaining authority does not disclose as to whether launching of a prosecution or cancelling or suspending the licences of the petitioners would have been or would not have been sufficient for preventing the petitioners from indulging in black marketing activities. Mr. Patel therefore urged that the detention orders be quashed.
(2.) . As against this Mr. M. A. Trivedi the learned P.P. appearing for the opponent No. 2 State took us through the orders and the files were also kept present in court. However on going through the grounds laid down in Ann.-C and the order passed pursuant to these grounds which is produced at Ann. A the detaining authority seems to have passed the detailed order but we are unable to pin point and Mr. Trivedi was unable to locate anything therein which might even remotely go to indicate that the alternative possibilities were before the mind of the detaining authority. It is not necessary that where alternative remedies or possibilities of preventing the petitioners were present no detention order could have been passed. Instead of launching a prosecution it might become necessary in certain cases to detain the detenu and that might be an efficacious way of preventing him from going on with objectionable activities. However the court must be satisfied that this possibility was very much present before the detaining authority and after taking into consideration and after knowing the pros and cons the prognosis was arrived at. If this is not done then clearly detention would be bad because it would be suffering from the vice of non-application of mind.
(3.) . Mr. Patel drew our attention to a case reported at 22 G.L.R. 797 RAMNIKLAL MOHANLAL PANDIT V. C. J. JOSH DY. SECRETARY FOOD & CIVIL SUPPLIES DEPARTMENT & ANR. wherein the detenu had challenged the order of detention. He was alleged to have indulged in black marketing activity in the commodity of crude oil which was an essential commodity for the community at large. Before the order could be passed the dealer had already surrendered the licence and the Division Bench consi- sting of B. J. Divan C.J. (as he then was) and B. K. Mehta J. after dilating upon the ratio of the Supreme Court decision reported at 20 G.L.R. 890 KANCHANLAL MANEKLAL V. STATE observed in para 10 of the judgment as under: "In the instant cases no attempt has been made by the State Government to satisfy the Court that the question whether prosecuting the petitioner rather than detaining him under preventive detention would not meet the requirements of the case. Once the petitioner has surrendered his licence as a dealer in crude oil for the two depots at Rangola and Pipardi it is clear that so far as future activity is concerned or prognosis is concerned the petitioner would not be in a position to deal in crude oil or to indulge in black-marketing in crude oil because there would be no possibility for him to get supplies of crude oil from bulk suppliers of crude oil in bulk. If that is so it is obvious that the detaining authority must satisfy the court why instead of prosecuting the petitioner and his employee the State Government thought it fit to detain the petitioner by preventive detention under the provisions of the Act before us. " These observations would apply to the facts of the present case as well. In the case before the Division Bench the dealer had already surrendered his licence and hence he was put beyond any pale of mischief because thereafter he could not have indulged in black marketing of crude oil. In the instant case the detaining authority was armed with a power of suspending and ultimately cancelling the licence of the fair price shop which the petitioners were running. They could also have been prosecuted and in fact orders for prosecution have been passed. Therefore the order of detention must necessarily indicate that these possibilities were considered by the detaining authority and there were over-riding reasons to come to the conclusion that that would not have sufficed. There being nothing in the order to indicate that there were the facts which were considered by the detaining authority it should necessary be held that the order detaining the petitioners was as a result of non-application of mind on this very very vitally important aspect. In that view of the matter we feel that the detention order in the present case requires to be quashed and is accordingly quashed. The continuation of the detention of the petitioners pursuant to the order dt. 29/12/1982 is clearly illegal and unjustified. It is therefore quashed and set aside and the petitioners shall be set at liberty forthwith.;

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