MAJMUDAR, J. - (1.) IN this petition under Article 226 of the Constitution, the petitioner who is detained under the provisions of the Prevention of Black marketing, and Maintenance of Supplies of Essential Commodities Act, 1980 ('the Act' for short) has brought in challenge the order of his detention as passed by the District Magistrate, Sabarkantha at Himatnagar on 19.11.1990 and as approved by the State of Gujarat under the Act, on diverse grounds. The order is passed against the detenu who was having a licence as a retail dealer in Kerosene and Crude at village Adpodra in Himatnagar Taluka of Sabarkantha District. The impugned order recites that with a view to preventing him from acting in any manner prejudicial to the maintenance or supplies of commodity essential to the community, it was necessary to detain him. The aforesaid order of detention has been brought in challenge on diverse grounds. However, one ground was submitted in the forefront at the time of final hearing of this petition. The said ground has been highlighted in paras (h) and (i) of the petition. It is stated therein that only 5 days after the order of detention of the petitioner, i.e., on 24.11.1990, the petitioner was released on parole by the State Govt. by exercising power under Section 15 of the Act. That since then, the petitioner was continuously remaining out of detention for about 22 days. That looking to the fact that since the petitioner was released by the State Govt. after five days of the date of order, continuously for 22 days, the whole purpose of detaining the petitioner is frustrated as by indiscreetly exercising power under Section 15, the Govt. has nullified the order of detention. In para (i), it has been averred that the detaining authority thought it fit not to initiate criminal proceedings against the petitioner so as to prevent the petitioner from indulging into black marketing activities only on the ground that the petitioner may get himself released on bail and continue the prejudicial activities. That on the one hand, the detaining authority thought it fit to prevent the petitioner by invoking such a harsh measure like detention under the Act and on the other, the State Government only after 5 days, released the petitioner on parole continuously for 22 days. This clearly discloses that the satisfaction arrived at by the detaining authority is not genuine and bonafide. At the same time, the satisfaction arrived at by the State Govt. while approving the order of detention was also not genuine and in that view of the matter, the continuous detention of the petitioner has become illegal.
(2.) SO far as this contention is concerned, an affidavit -in -reply has been filed by Mr. N.L. Bhatt, Under Secretary, Food and Civil Supplies Department, Gandhinagar. In para 7 of the said affidavit, it has been pointed out the order of detention was passed against the petitioner on 19.11.1990 and accordingly, he was detained under the said order, but immediately, thereafter, the petitioner's wife approached the State Government for, release of the petitioner on parole, as she was admitted in Shri Sapana Surgical Hospital, Himatnagar and a certificate was issued by Dr. D.M. Patel to that effect. In this view of the matter, the petitioner was granted parole for 7 days by an order dated 23.11.1990, i.e., from 24.11.1990 to 1.12.1990. That before the said parole could expire, an application was moved by the petitioner's son on 30.11.1990 wherein it was mentioned that the petitioner was admitted in General Hospital, Himatnagar on 30.11.1990 as an indoor patient and therefore, 15 days' parole was asked for. That the authorities, after careful consideration of the same, granted parole for 3 days by an order dated 1.12.1990 for the period commencing from 2.12.1990 to 4.12.1990. Again, an application dated 4.12.1990 was received from his son seeking parole for 10 days on account of the continued treatment of the petitioner in General Hospital, Himatnagar. By an order dated 6.12.1990, 5 days' parole, was granted, i.e., from 5.12.1990 to 9.12.1990. During this period, the petitioner was shifted to Civil Hospital, Ahmedabad on 7.12.1990. Thereafter, an application dated 10.12.1990 made by the wife of the petitioner was received and a parole for 15 days prayed for. That after, taking into consideration the certificate issued by the Resident Medical Officer, Class I, Civil Hospital, Ahmedabad, parole for 5 days was granted by order dated 13.12.1990 for the period from 10.12.1990 to 14.12.1990 and thereafter, the petitioner surrendered on 15.12.1990. Thereafter, the petitioner again made an application dated 4.1.1991 on the ground of his own illness which was refused by the authorities. Thereafter a parole application was made by his son and by order dated 11.1.1991, 3 days parole was granted from 13.1.1991 to 15.1.1991. The petitioner surrendered on 16.1.1991. Subsequent application by the petitioner's son dated 23.1.1991 for parole on the ground of Republic Day was refused. Thereafter, another application was moved on 29.1.1991 for parole for 15 days on account of marriage ceremony of the niece of the petitioner which was considered and by an order dated 31.1.1991, 7 days parole was granted from 2.2.1991 to 8.2.1991. The petitioner surrendered on 9.2.1991 by subsequent application dated 11.2.1991 by the detenu for parole for 5 days on account of Maha Shivratri was refused.
(3.) IT was submitted by the learned Advocate for the respondents that the State authorities are entitled to act under Section 15 of the Act, and can grant parole in suitable cases on relevant facts and grounds. But that would not affect that efficacy of detention order or continued need to detain the detenu under the Act. It was submitted that as the appropriate Govt. was satisfied that parole on various occasions was required to be granted to the petitioner and in all 30 days' parole was granted and even on three occasions, parole applications were rejected. Consequently, it cannot be said that powers under Section 15 have been exercised in any illegal or oblique manner or that the subjective satisfaction underlying the order of preventive detention or its approval by the State authorities has got vitiated. In order to appreciate these rival contentions, we had requested the learned Addl. P.P. who appeared for the respondents to make available the relevant file showing how various applications under Section 15 moved by the detenu's wife, son or detenu himself had been dealt with from time to time by the appropriate Government. A close scrutiny of these relevant applications on file revealed a very startling situation. It has to be noted that the petitioner was, detained on 19.11.1990 on the ground that it was absolutely necessary to put him out of harm's way as he was alleged to have indulged in black marketing of kerosene which was essential commodity and he was alleged to have diverted the stock from the channel meant for distribution of kerosene to the needy customers, to unauthorised quarters under fictitious and bogus bills. The grounds of detention themselves indicate that the situation was so urgent that it was not feasible to deal with the detenu under ordinary law and even if criminal proceedings were initiated against him, he was likely to be released on bail and was likely to resume his illegal and unauthorised activities and, therefore, there was imminent need to detain him by way of preventive detention under the Act so that, as laid down by the Act, he can be kept out of harm's -way. It is pertinent to note that maximum period of detention permissible under Section 13 thereof is six months from the date of detention. Thus, the grounds of detention as formulated by the District Magistrate who is the detaining authority, clearly show that there was imminent need to keep the detenu out of harm's way atleast for six months which is the maximum period of detention. After the detenu was taken under detention pursuant to the aforesaid order, the order had got to be approved by the State Government in exercise of its power under Section 3(3) which lays down that "When any order is made under this section by an officer mentioned in sub -section(2), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been Approved by the State Government." It is not in dispute between the parties that the impugned order of detention was approved by the State Government on 28.11.1990, i.e. within nine days of the passing of the order by the detaining authority. But in the. meantime, within two days, an application was moved on 21.11.1990 by the detenu's wife Jasudben Shah. The said application addressed to the Minister for Civil Supplies, Gandhinagar, stated that her husband was detained under the At on 19.11.1990. That she was a patient of heart attack and was suffering from appendicitis. That on 20.11.1990, she developed acute pain of appendicitis and her neighbours had got her admitted to the hospital of Dr. Dahyabhai M. Patel who was running Shri Sapna Surgical Hospital at Himatnagar and she was advised immediate operation. As it was not possible to get it done in the absence of her husband, she requested to grant parole to the petitioner. A certificate to this effect given by Dr. Dahyabhai M. Patel was annexed to the said, application. The certificate is dated 21.11.1990. It is on the latter -head of Shri Sapna Surgical Hospital and it stated that Jasudben Rasiklal Shah was admitted in his hospital on 20.11.1990. She was suffering from acute appendicitis and she was advised to be operated urgently. ;