1. By this petition under Article 226, Constitution of India, petitioner-detenu JivrajbhaiVrajlalPatel has prayed for a writ of Habeas Corpus and quashing the detention order dt. April 16, 1987 passed against him by the District Magistrate, Surat, the detaining authority, under Sub-sections (1) and (2) of Section 3 of the Prevention of Blackmarketing and; Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as 'the P.B. Act') The District Magistrate was subjectively satisfied and, therefore, with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community found it necessary to detain him and, therefore, passed the impugned order of detention.
2. The petitioner was served with the grounds of detention of even date. In the grounds of detention it is stated that the detaining authority was informed by a social worker that the petitioner was getting groundnut oil from the Saurashtra area under the fictitious name of the commission agents and was encouraging blackmarketing in essential commodity viz. oil. The detaining authority then inquired into the matter and also recorded the statements of the petitioner and various other witnesses and was satisfied that the petitioner had purchased 4,350 tins of groundnut oil, rapeseed oil and Rayada oil by 14 bills, through one Kishorebhai Patel and the bills were got up and no person having the name Kishorebhai Patel was available at Danapith in Junagadh from whom the petitioner is alleged to have got.oil tins and made payment. Telephone No. 22440 alleged to be of Kishorebhai Patel was of some another person. The detaining authority was also satisfied that oil worth Rs. 13,03,540/- was purchased by the petitioner and payment was made by drafts and an amount of Rs. 1,49,020/- was paid in cash by the petitioner to Kishorebhai Patel. It also transpired that fictitious Bank accounts were opened and drafts were credited and amount was withdrawn. Persons in whose names accounts were opened were also not available. Ultimately, the detaining authority was subjectively satisfied that got up bills were prepared in the names of fictitious firms Amar Industries, Jetpur and Bhavna Industries, Vanthali, which were not in existence at all. It is also stated that Assistant Sales Tax Commissioner reported that the petitioner evaded 4 per cent sales tax and 10 per cent surcharge. The petitioner was doing activities by which huge profit could be earned. The petitioner was indulging in serious criminal activities by which blackmarketing and profiteering would be encouraged. It is also specif icially stated in the grounds of detention that the petitioner did not maintain the stock register and accordingly violated the provisions of Clause 23 of the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981, and condition 4(1) of the Licence, and thereby committed breach of the provisions of Section 3 of the Essential Commodities Act and consequently offence punishable under Section 7 of the said Act. Along with the grounds of detention the petitioner was supplied 42 documents on which the detaining authority based his subjective satisfaction.
3. The petitioner raised various contentions in the petition, in reply to which affidavits are filed by Shri A. Chandra-sekharan, Under Secretary, Ministry of Food and Civil Supplies (Department of Civil Supplies), New Delhi, Shri K.D. Parmar, the then District Magistrate, Surat, the detaining authority, and Shri K.B. Makwana, Deputy Secretary, Food and Civil Supplies Department, Sachivalaya, Gandhinagar.
4. It is contended by the petitioner in para. 3(ix) of the petition that the detention of the petitioner is bad in law for non-compliance of the mandatory provisions of Sub-section (4) of Section 3 of the P.B. Act, as the report to the Central Government required' to be submitted within seven days of the approval by the State Government was not submitted during that prescribed period. According to the petitioner, the report along with the order of detention, grounds of detention and other materials must reach the Central Government within seven days of the date of approval of the detention order.
5. Shri K.B. Makwana, Deputy Secretary to the Government of Gujarat, Food and Civil Supplies Department, Gandhinagar, in his affidavit stated that the detention order was passed on 16-4-1987 and was approved by the State Government on 22-4-1987, and the report was made to the Central Government on 28-4-1987 along with the impugned order of detention, grounds of detention and other relevant material. He also stated that the report, grounds of detention and other material were submitted to the Central Government in English language. Shri A. Chandrasekharan, Under Secretary to the Central Government, Ministry of Food and Civil Supplies, New Delhi, in his affidavit has stated that as provided in Sub-section (4) of Section 3 of the P.B. Act the State Government has to report the fact of detention to the Central Government within seven days of its approval by them, and in the instant case the State Government approved the detention order on 24-4-1987 and reported about the detention vide their letter dt. 28-4-1987 which was received by the Department on 6-5-1987 along.with the' grounds of detention and other relevant material. The admitted position, therefore, is that the petitioner was detained on 16-4-1987, detention order was approved by the State (Government on 22-4-1987 and report was made to the Central Government on 28-4-1987 and was received by the Central Government on 6-5-1987. Admittedly, the report was received by the Central Government after the period of seven days.
6. Mr. S.V. Raju, learned Advocate for the petitioner, submits that the order made by the State Government under Section 3 of the P.B. Act must reach the Central Government within seven days of the approval of the order, and merely forwarding a report within a period of seven days would offend the provisions of Sub-section (4) of Section 3 of the P.B. Act, and as that statutory provision is not complied with, infraction would invalidate the detention order.
7. As against that, Mr. H.M. Bhagat, learned Additional Standing Counsel for respondent No. 3 - Union of India, and Mr. D.K. Trivedi, learned Additional Public Prosecutor for respondents 1 and 2, asserted that the report is required to be forwarded to the Central Government within seven days and it is not necessary that the report must reach to the Central Government within a period of seven days and, therefore, provisions of Sub-section (4) of Section 3 of the P.B. Act are not violated.
8. For ascertaining the meaning of expression "report the fact" we examined it from diverse angles, viz", legislative intent, reference to other provisions of the p.b. act, comparison with certain provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the CGFEPOSA Act') meaning as can be gathered from Oxford Dictionary, the context of its various usage in Corpus Juris Secundum and its interpretations in judgments of the Supreme Court and High Courts.
9. To ascertain the intention of the legislature in specifically using the word "report" in Sub-section (4) of Section 3. of the P.B. Act, it is necessary to examine the Scheme of the P.B. Act. The provisions for detention on subjective satisfaction of Government or authorised officer, with a view to preventing any person from acting in any manner prejudicial to maintenance of supplies of commodities essential to the community are in Sub-section (1) of Section 3 of the P.B. Act. After the detention order, the District Magistrate or Commissioner of Police exercising the powers under Sub-section (2) of Section 3 of the P.B. Act should forthwith report the fact to the State Government. Under Sub-section (4) of Section 3 of the P.B. Act, the State Government has to report the fact to the Central Government together with the grounds on which the order has been made, within seven days. Under Section 8 of the P.B. Act, the authority making the order of detention should as soon as may be, but ordinarily nor later than five days, and in exceptional circumstances and for the reasons to be recorded in writing, not later than ten days from the date of detention, communicate to the detenu the gounds on which the order has been made and should afford him the earliest opportunity of making a representation against the order to the appropriate Government. Section 10 of the P.B. Act provides for reference to" the Advisory Board, and the appropriate Government has to place before the Advisory' Board the grounds on which the order has been made and the representation, if any, made by the detenu within a period of three weeks from the date of detention, and as provided in Section 11 of the P.B. Act, the Advisory Board has to submit its report to the appropriate Government within seven weeks from the date of detention. Section 13 of the P.B. Act provides for maximum period of six months for detention. Under Section 14 of the P.B. Act, the State Government or the Central Government can revoke the order of detention.
10. It is, therefore, evident from the Scheme and provisions of the p.b. act that the time is prescribed for various steps and actions required to be taken by the Government for continued detention of the person detained under Section 3 of the P.B. Act. Maximum period of detention is only six months and, therefore, also it appears that time limit is prescribed in the above referred provisions of the P.B. Act. Section 14 of the P.B. Act specifically provides for revocation of the order by the State Government and the Central Government. The purpose of submitting the report to the Central Government by the State Government under Sub-section (4) of Section 3 of the P.B. Act is not an idle formality, but it is with a view that the Central Government may consider the allegations against the detenu, the representation of the detenu, if any, and the possibility of revocation of the detention order. A combined reading of Sub-section (4) of Section 3 and Section 14 of the P.B. Act makes it clear that the purpose of making a 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 po\yer to revoke such order under Section 14(1)(a) of the P.B. Act. Similar view is expressed by this Court in Chandravati Fakirchand Zaveri v. State of Gujarat 1982 (1) 23 Guj LR 760 : 1982 Cri LJ1543. In that case the report was not submitted for nearly two months and, therefore, the detention order was quashed. However, the point did not come up for consideration before the Division Bench, as to whether the report should reach the Central Government within seven days from the date of approval.
11. From the provisions of the p.b. act, intention of the legislature that the Central Government must be informed of the detention order or the approval of the detention order by the State Government within the prescribed period to enable the Central Government to exercise the power of revocation under Section 14 of the P.B. Act, is clear.
12. Considering other provisions of the p.b. act in which phrase "report the fact" is used and also analogous provisions in other statutes relating to detention in which the word "report" is used, the intention is clear. To appreciate this aspect in a proper perspective, Sub-section (4) of Section 3 of the P.B. Act be extracted. Sub-section (4) of Section 3, P.B. Act, provides:
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 withthegrounds 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 is pertinent to note that in Sub-section (4) of Section 3 of the P.B. Act, specific provision is that 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.
13. Under the provisions of the COFEPOSA Act obligation under Sub-section (2) of Section 3 is on the State Government to submit the report to the Central Government. The legislature has not used the same phrase but has adopted different phraseology by providing, "the State Government shall, within ten days forward to the Central Government a report in respect of the order". Specific provision is made in Sub-section (2) of Section 3 of the COFEPOSA Act enabling the State Government to forward the report within stipulated time. The legislature has advisedly used the expression "to forward the report" and not "shall forward the report", the emphasis for the former being on "to forward" and in the latter on "to report"; in the former it is used as a noun, and in the latter as a verb. While in Sub-section (4) of Section 3 of the P.B. Act, the, word "report" is used as a verb and not as a noun. That must be with a specific purpose, that the report along with necessary document i should reach the Central Government within a period of seven days.
14. In Sub-section (3) of Section 3 of the P.B. Act,, similar phrase "report the fact" is used making it obligatory on the detaining authority to submit the report to the State Government forthwith after the detention. If the report is not received by the State Government and the State Government does not approve the detention order within twelve days after detention the detenu should be released from the detention. Proviso to Sub-section (3) of Section 3 of the P.B. Act provides for some extended limit for the period of approval, but that is not material for our purposes. It is clear from the provisions of Sub-section (3) of Section 3 of the P.B. Act that the word "report" is used as a verb indicating that the report about the detention along with the grounds of detention, etc., must reach the State Government forthwith, i.e. immediately without any delay. The very fact that the detention order is required to be approved within a period of 12 days indicates that the report along with other documents must reach the Government immediately after the order of detention so that the Government can consider the grounds of detention and may also consider the advisability of revoking -the order. Same phrase "report the fact" is used in Sub-section (4) of Section 3 of the P.B. Act, and that indicates the same meaning, viz. that the report of the fact of detention along with other documents must reach the State Government or the Central Government, as 'the case may be, within the prescribed period. It is now well-settled that where the same i expression is used in the same statute at different places, the same meaning can be given to that expression as far as possible. In Lal Chand v. Radha Kishan , the Supreme Court while considering the meaning of the word "tenant" has expressed the above view. We are, therefore, of the opinion that the expression "report the fact" used in Sub-section (3) and Sub-section (4)of Section 3 of the P.B. Act indicates the same meaning, that the fact of detention along with other documents must reach to the Government, and it is not used in the sense that the report should be forwarded to the Government within the specified period.
15. We shall now consult the dictionary to ascertain the meaning of the word "report". When,' used as a 'verb' or as a 'noun' it predicates different meaning. "Report" when used as a transitive verb, necessarily indicate the involvement of its object of action or operation. In the New Oxford Encyclopedic Dictionary, the meaning of the word "report" when used as verb, is, "give formal account or statement of; make report; relate or state as result of observation or investigation; name j(person) to superior authority as having offended in some way; make known to some authority that one has arrived or is present;". In the Concise Oxford Dictionary, 5th Edition, the meaning of the word "report" when used as verb is, "inform against (offence, offender) to authorities". The word "report" when used as noun means "common talk, rumour; way person or thing is spoken of, repute; account given or opinion formally expressed after investigation or consideration," etc. From the dictionary meaning of the word "report" when used as verb, it is clear that it indicates an act of presenting or communicating or i imparting information to another person. In the background of our discussion, indication of the phrase "to report" is that the fact of detention must reach the Central Government and not merely an act of forwarding the fact of detention to that Government.
16. Meaning of the word "report" when used as a noun or verb is considered in several judgments by American Courts. In Corpus Juris Secundum, Vol. 77, at page 343, while considering the meaning of word "report" as a verb, it is stated:
...As a verb 'report' is defined as meaning to give an account of; to relate; to tell; and it has been said that to report means to convey or disseminate information, and as long as the desired information is looked up on one's breast and not disclosed it is not a report, since that which is not made known is not reported.
(Emphasis supplied).
From that also it is clear that the word "report" when used as a verb indicates that the fact should reach the object.
17. We shall now refer the judgments of the Supreme Court, Bombay High Court and Patna High Court in which analogous provisions are considered. Mr. S.V. Raju, learned Advocate for the petitioner, has referred the Bombay High Court judgment in Vinayak Ramchandra v. D. Ramchandran 1985 Cri LJ 1257, while Mr. H.M. Bhagat, learned Additional Standing Counsel for respondent No. 3, and Mr. D.K. Trivedi, learned Additional Public Prosecutor for respondents Nos. 1 and 2, have referred the Patna High Court judgment in Yogendra Singh v. State of Bihar 1985 Cri LJ 889. provisions of sub-section (4) of section 3 of the maintenance of internal security act, 1971 (hereinafter referred to as 'the misa') are practically analogous to the provisions of Sub-section (4) of Section 3 of the P.B. Act.
18. In Vinayak Ramchandra Sakhalkar's case (supra) a reference is made to a judgment of the Supreme Court in Sher Mohammad Alias Seru v. State Of West Bengal. . It is observed therein that the words and expression "report the fact to the Central Government within seven days" were construed by the Supreme Court in Sher Mohammad's case to mean to "communicate" the fact within seven days. Taking the word "communicate" as an equivalent of the word "report", the Supreme Court in Sher Mohammad's case has observed that Sub-section (4)of Section 3, MISA, obliges the State Government to communicate within seven days of the order of detention it makes or it approves, that fact to the Central Government, together with the grounds on which the order has been made and other relevant particulars. In other words, although the statutory phraseology is"shallwithinseven days report the fact to the Central Government", the Supreme Court in Sher Mohammad's case has substituted the word "communicate", holding that such communication must be within seven days. This observation of the Supreme Court was made in the light of the facts of the case before it. The detention of the detenu in Sher Mohammad's case (supra) was made on Nov. 21, 1972, by the District Magistrate and approved by the State Government on Dec. 2, 1972. The communication to the Central Government was made on Dec. 1, 1972. The Supreme Court observed that the date Dec. 1, 1972 was beyond seven days of the District Magistrate's order. On the other hand, if the relevant date was approved by the State Government, that date was Dec. 2,1972, and therefore, communication of approval on Dec. 1, 1972, was in a way premature. It is in the light of these facts that Sub-section (4) of Section 3, MIS A, came to be interpreted by the Supreme Court. The discussion led the Supreme Court to observe as stated above, namely, to the effect that the report, that is to say, the communication of the approval of the State Government should reach the Central; Government within seven days.
19. In Vinayak Ramchandra Sakhalkar's case (1985 Cri LJ 1257) (Bom) (supra) taking a clue from the above observations in Sher Mohammad's case (1975 Cri LJ 1751) (SC) (supra), the Division Bench has discussed this aspect in details referring to several sources where the word "communicate" is used. The Division Bench concluded that "communication" means bringing home the effective knowledge of facts. The Division Bench observed:
...In , Harikrisan v. State of Maharashtra, the Supreme Court held that 'communication' means bringing home the effective knowledge of facts. In our view same is the import of expression 'report the fact' as used in Section 3(5) of the Act. Section 3(5) casts a duty on the State Government to report the fact to the Central Government within seven days together with the grounds on which order has been made and such other particulars, as in the opinion of the State Government, have bearing on the necessity of the order. Therefore, unless the report sent by the State Government under Section 3(5) of the Act is received by the Central Government, it cannot be said that the fact of detention together with the grounds on which the order has been made is communicated or reported to the Central Government within the meaning of Section 3(5) of the Act.
It was contended before the Division Bench of the Bombay High Court, as it is also done before us by Mr. H.M. Bhagat, learned Additional Standing Counsel for respondent3, and Mr. D.K. Trivedi, Additional Public Prosecutor for respondents 1 and 2, that if it is held that "report" means actual communication of the fact of detention, i.e. reaching of the communcation to the Central Government, it would lead to absurd results and sometimes for no fault of the approving authority the detention order must be set aside. That contention was repelled by the Bombay High Court as we also do. No method of communication of fact of detention is prescribed in the Act and, therefore, we do not think it necessary to enter into that aspect, since in any case the fact must be reported to the Central Government within seven days.
20. In the case of Yogendra Singh (1985 Cri LJ 889) (supra), the Division Bench of the Patna High Court has expressed the view contrary to the view expressed by the Bombay High Court in the case of Vinayak Ramchandra Sakhalkar (1985 Cri LJ 1257) (supra). provisions of Sub-section (5) of Section 3, National Security Act, were being considered by the Division Bench of the Patna High Court, and considering the provisions relating to "report of the fact along with the grounds of detention to the Central Government", it is observed in para 11 as follows:
The contention of Mr. Prasad that the report ought to have reached the Central Government within seven days cannot be-accepted because the obligation imposed upon the State Government under Section 3(5) of the Act is that the State Government shall send a report and it is not that the report t should reach within a period of seven days. There is absolutely no ambiguity or any question of interpretation of the provision, stated above and, therefore, the contention ' raised, as stated above, is not tenable.
The learned Judges of the Patna High Court constituting the Division Bench, with respect, have not considered the meaning of "report" as a verb and have considered it as a noun and, therefore, for the purpose of considering : the provisions of Sub-section (5) of Section 3, National Security Act, observed that the State Government has to "send a report" to the Central Government. The expression in Sub-section (5) of Section 3, National Security Act, is not "shall send a report" but it is "shall report". The difference in the employment of the word is significant. The difference, with respect, has been lost sight of the Division Bench. With respect, therefore, we are not in a position to agree with the view expressed by the learned Judges of the Division Bench of the Patna High Court. For the reasons recorded by us above, we respectfully agree with the penultimate observations, as referred above, by the Division Bench of the Bombay High Court.
21. Mr. H.M. Bhagat, learned Additional Standing Counsel for respondent 3,tried in vain to distinguish between the effect of infraction of statutory provisions and constitutional provisions, and submitted that rigour of infraction of the provisions of Sub-section (4) of Section 3 of the P.B. Act should not be considered same as infraction of procedural provision of Article 22(5) of the Constitution of India. Mr. Bhagat also submitted that if the view which we are expressing is taken, it would lead to undue hardship and many detenus would be required to be released for such infraction of the statutory provisions of Sub-section (3) of Section 4 of the P.B. Act. Submission of Mr. Bhagat deserves to be rejected, as it is clear that the period of seven days is available to the State Government after the approval of the detention order for submission of the report, i.e. delivery of fact about the detention and the grounds of detention, etc. to the Central Government. If due diligence is exercised, period of seven days is sufficient to deliver the papers to the Central Governntent. No practical hardship in such cases is, therefore, likely to arise and the provisions can be conveniently complied with. Even if any practical difficulty is likely to arise that should not be a consideration for interpreting the provisions of Sub-section (4) of Section 3 of the P.B. Act in favour of the respondents, as submitted by Mr. Bhagat. It also cannot be accepted that rigour of infraction of the provisions of Statute is not the same as rigour of the provisions of Article 22(5), Constitution. It is now too late to make such a submission as the law on the point is well settled by several judgments of the Supreme Court. Infraction of the procedural provision of the preventive detention statutes made in accordance with the provisions of Article 22(5) would certainly invalidate the detention order as liberty of the subject is curtailed by such provision.
22. The Supreme Court in Abdul Latif Abdul Wahab Sheikh v. B.K. Jha , has observed in para 5 as under:
...In a habeas corpus proceeding, it is not a sufficient answer to say that the procedural requirements of the Constitution and the statute have been complied with before the date of hearing and, therefore, the detention should be upheld. The procedural requirements are the only safeguards available to a detenu since the Court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. If a reference to an Advisory Board is to be made within three weeks, it is no answer to say that the reference, though not made within three weeks, was made before the hearing of the case. If the report of the Advisory Board is to be obtained within three months, it is no answer to say that the report, though not obtained within three months, was obtained before the hearing of the case. If the representation made by the detenu is required to be disposed of within a stipulated period, it is no answer to say that the representation, though not disposed of before the hearing of the case It is, therefore, clear from the aforesaid observations that such statutory provision prescribing the time-limit or providing a particular procedure should be scrupulously and strictly complied with. Similar view is also expressed in Hem Lall Bhandari v. State of Sikkim , in which it is observed in terms that the mandate enacted in Section 8(1), National Security Act, should be interpreted literally and no relaxation is permissible. In Mrs. T sering Dolkar v. Administrator, Union Territory of Delhi , the observations are that the law as laid down by the Supreme Court clearly indicate that in the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a failure to comply with those requirements, it becomes difficult to sustain the order. Their Lordships of the Supreme Court also referred Bablu Das v. State of West Bengal , Khudiram Das v. State of West Bengal and Fogla v. State of Bengal , in that case.
23. We are, therefore, of the view that the fact about the detention along with the grounds of detention, etc. should reach the Central Government within a period of seven lays, as provided in Sub-section (4) of Section 3 of the P.B. Act. That procedural requirement is not observed and, therefore, the infraction of the said provision vitiates the continued detention of the petitioner, and on that ground the detention order should be quashed and set aside.
24. Mr. S.V. Raju, learned Advocate for the petitioner, has also raised three other contentions, viz.
(1) Report of approval was sent to the : Central Government with the English translation of the grounds of detention, etc., and a copy of the translated grounds and documents were not supplied to the petitioner-detenu and, therefore, the detention order vitiates., (2) Delay of about 28 days was caused in disposal of the representation made to the Central Government for revocation under Section 14, P.B. Act.
(3) The grounds of detention are not relevant to the subject-matter in respect of which the subjective satisfaction is reached by the detaining authority.
25. As we are of the view that the detention order should be quashed for the above referred reasons, these contentions are not required to be considered. However as they are urged before us, and we are of the view that all the contentions deserve to be repelled, we would like to consider them without much elaboration.
26. The State Government is required to report the fact of the detention to the Central Government together with the grounds on which the order has been made and other particulars, as in the opinion of the State Government have bearing on the necessity of the order, as provided in Sub-section (4) of Section 3 of the P.B : Act. As discussed above; the report and the documents are required to be submitted so that the Central Government may consider the possibility of revocation of the detention order under Section 14 of the P.B. Act. Neither under the provisions of Article 22(5) of the Constitution of India nor under the P.B. Act it is provided that copies of the translated documents should be supplied to the detenu. Admittedly, the petitioner was supplied with the grounds of detention' and all the relevant documents in the language understood by him and he has also made effective representation to the Central Government. Submission of Mr. S.V. Raju, learned Advocate for the petitioner, that it was not known as to whether true translation was submitted to the Central Government or not, by itself would not impose an obligation on the State Government to supply the translated copies of the grounds of detention and other materials submitted the State Government to the Central Government. provisions of Sub-section (4) of Section 3 of the P.B. Act cannot be equated with the provisions of Article 22(5), Constitution of India, and on that analogy additional burden cannot be imposed on the State Government to supply even the translated copies of the documents to the detenu. If it is not a statutory or constitutional obligation to supply such translated copies, it cannot be imposed on the Government only because the detenu raises a doubt that translation may not be true. The grounds of detention and other materials are supplied to the detenu and he has a right to make a representation to the Central Government independently, and as such he has made such a representation. That submission of Mr. Raju, therefore, cannot be accepted.
27. So far as the subjective satisfaction of the detaining authority is concerned, it is, clearly stated in the grounds of detention that the petitioner got about 4,350 oil tins worth about Rs. 13,03,020/- from fictitious firms which never existed, and did not maintain the stock registers, and thereby violated the provisions of Clause 23 of the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981, as also the provisions of the licence. No grievance is made by Mr. S.V. Raju, learned Advocate for the petitioner in that behalf. But his grievance is that in the grounds of detention it is stated that by getting oil from such persons, the petitioner evaded payment of 4 per cent, sales tax and 10 per cent, surcharge. It is true that that fact is stated in the grounds of detention, but that is not a ground for detention. That factual aspect is required to be considered with referecne to the other facts stated in the grounds of detention. It is stated that the petitioner had close relations with Kishorebhai Patel and in collusion with him the petitioner secured the groundnut oil without bills. It is then stated that as informed by the Assistant Commissioner of Sales-Tax, by securing the groundnut oil without bills, the petitioner evaded to pay 4 per cent, sales-tax and 10 per cent surcharge. It is then alleged that by such act, the petitioner is indulging in activities by which huge profit can be gained and the petitioner is doing unlawful activities, encouraging blackmarketing and profiteering and except detaining him there is no other alternative for the detaining authority. It, therefore, cannot be said that the said ground of detention is solely based on the fact that the petitioner had evaded to pay sales-tax. That ground of detention is relating to the abovesaid illegal activities of blackmarketing and profiteering in groundnut oil Merely because in the grounds of detention it is stated that the petitioner has also evaded payment of sales-tax would not itself vitiate the subjective satisfaction of the detaining authority. It is true that there is no provision in the P.B. Act like the provision of section 5-a of the cofeposa act, that out of the various grounds if some grounds are irrelevant or non-existent, that would not vitiate the detention order. But considering the facts as narrated in the grounds of detention, it cannot be said that the second ground is irrelevant or non-existent. It is clear from the provisions of Cl. (b) of Explanation to Sub-section (1) of Section 3 of the P.B. Act, that for the purposes of Sub-section (1) of Section 3 of the P.B. Act, the expression
"acting in any manner prejudicial to the maintenance of supplies of commodities, essential to the community"
means dealing in any commodity which is an essential commodity as defined in the
Essential Commodities Act, 1955, or with respect to which provisions have been made in any such other law as is referred to in Cl. (a), with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid By getting the groundnut oil, which is an essential commodity, without bills from fictitious persons, it is evident that the petitioner did that activity with a view to making gain directly or indirectly to defeat the
provisions of the p.b. act or the order issued thereunder. Subjective satisfaction of the detaining authority is, therefore, not vitiated.
28. In the aforesaid view of the matter, it is not necessary to refer the judgment in Kishore AmratlalPatel v. Rajiv Takru (1987) 1 Guj LH 543 : 1988 Cri LJ 826 and Krishna Murari Agarwala v. The Union of India , relied on by Mr. S.V. Raiu, learned Advocate for the petitioner. However, it is clear from the observations in para 13 of the judgment in the case of Kishore Amratlal Patel (supra) that one of the grounds for detention was breach of the provisions of Prevention of Food Adulteration Act, and that affected the subjective satisfaction of the detaining, authority. It is observed therein that when that breach reflected in ground No. 12 had entered the composite process of subjective satisfaction of the detaining authority, it must be held that the detaining authority has relied on a totally extraneous ground dehors the scope and ambit of Section 3 of the P.B. Act, and once that conclusion is reached, the result is obvious that comprehensive subjective satisfaction was found to be partly based on an irrelevant ground which would vitiate the entire subjective satisfaction and knock out the basis of the detention order wholesale. As discussed above, in the instant case, there was no such totally extraneous ground dehors the scope and ambit of Section 3 of the P.B. Act.
29. It is contended that the petitioner sent the representation to the President on 3-5-1987, which was received by the office of the President on 6-5-1987 and that was sent to the concerned Ministry by the Office of the President on 3-6-1987, and ultimately the Central Government rejected the representation of the petitioner. It is submitted, the delay of about 27 days in the office of the President is not explained, as no affidavit is filed by any officer of the office of the President explaining the delay. It is true that the delay in the office of the President is not explained, but it is also clear that the representation was submitted by the petitioner to the Governor of Gujarat State on 3-5-1987, and it was received by the office of the Governor of Gujarat on 5-5-1987, and it was sent to the concerned Ministry of the Government of Gujarat, which received it on 6-5-1987, and the State Government after considering it, rejected it on 7-5-1987 and the petitioner was informed about that by the Additional Chief Secretary and Minister of Civil Supplies, Government of Gujarat, on 8-5-1987. Mr. K.B. Makwana, Deputy Secretary, Food and Civil Supplies Department, Government of Gujarat, Gandhinagar, has stated the aforesaid facts in his affidavit. Mr. A. Chandrasekharan, Under Secretary, Ministry of Food and Civil Supplies (Department of Civil Supplies), New Delhi, has stated in his affidavit that the representation dt. 3-5-1987 of the petitioner, addressed to the Governor of Gujarat, and forwarded by the State Government of Gujarat vide letter dt. 8-5-1987 was received by the Food and Civil Supplies Department, Government of India, on 11-5-1987. Parawise comments sent by the State Government along with the representation were incomplete and, therefore, further details were called for on 12-5-1987 and were received on 18-5-1987, and after detailed examination of the representation the file was submitted on 18-5-1987, and ultimately the representation was rejected by the Joint Secretary on the same day, i.e. 18-5-1987, and the petitioner was informed through the Superintendent, Central Prison, Sabarmati, Ahmedabad, telegraphically on 19-5-1987. It is also stated by him in his affidavit that an identical representation dt. 3-5-1987 addressed to the President of India, was also received on 4-6-1987 forwarded by the President's Secretariat vide communication dt. 3-6-1987. The rejection of that representation was again conveyed to the petitioner on 9-6-1987 through the Ahmedabad Central Prison. From the affidavit of Mr. A. Chandrasekharan, it is clear that the representations made to the Governor of Gujarat and to the President of India were dt. 3-5-1987 and they were identical. First representation was sent to the Central Government by the State Government and it was considered on merits by the Central Government and rejected on 18-5-1987, and the second representation was also considered and rejected on 9-6-1987. No counter-affidavit is filed on behalf of the petitioner stating that the representations to the Governor of Gujarat and to the President of India were not identical. Mr. S.V. Raju, learned Advocate for the petitioner, also could not satisfy us, and stated that except the fact that one representation was addressed to the Governor of Gujarat and another to the President of India, there was practically no difference between the said two representations. It is, therefore, evident that the representation on merit was considered by the competent authority, i.e. the Central Government, under Section 14 of the P.B. Act on 18-5-1987 and again same representation was considered on 9-6-1987. The representation was, therefore, considered by the Central Government without any delay. As such, the fact that the representation sent to the President of India was not forwarded to the concerned Ministry for about 27 days is, therefore, not material as the representation was already considered by the Central Government. A representation is submitted with the obvious purpose of considering it and with a request to order under Section 14 of the P.B. Act, and when it is already considered on merit and decision is taken promptly, the delay in consideration by same authority of same representation sent through another authority would not make any material difference. When similar representations are sent through various authorities for consideration by the same competent authorities and they are considered on merit, the fact that another representation is considered after a lapse of some time would not affect the right of the detenu and cannot be considered to be a sufficient ground for quashing the detention order. Mr. S.V. Raju, learned Advocate for the petitioner, submitted that the Government of Gujarat was not called upon to send the representation to the Central Government, and the Government had submitted the representation of its own, but that by itself would not affect the right of the petitioner, as the identical representation was sent to the President of India by the petitioner on the same day. On the contrary, the Government of Gujarat initiated that section with a view to help the petitioner so that the Central Government may consider his representation and pass appropriate orders under Section 14 of the P.B. Act. It also cannot be said that any other independent right of representation to the Central Government was affected. We are fortified in our view by the Supreme Court judgment in State of U. P.v. Zawad Zama Khan . In that case, in similar circumstances, representation was forwarded by the State Government to the Central Government, and it was considered by the Central Government under Section 14, National Security Act. Second representation was also submitted to the Central Government. The Central Government duly considered the said representation, which in effect was nothing but representation for revocation of detention order, under Section 14, National Security Act. The Supreme Court observed that it was not obligatory on the part of the Central Government to consider a second representation for revocation under Section 14, National Security Act. After considering certain authorities, it was observed that the principle that emerges from the said authorities is that the power of revocation conferred on the Central Government under Section 14, National Security Act, is a statutory power which may be exercised on information received by the Central Government from its own sources including that supplied by the State Government under Sub-section (5) of Section 3, National Security Act, or from the detenu in the form of a petition for representation, and it is for the Central Government to deteide whether or not it should revoke the order of detention in a particular case. In the instant case, the Central Government again considered the representation sent by the petitioner to the President of India. But in case, had it not considered it at all, that would not make any material difference as by that the right of the petitioner would not have been affected, Submission of Mr. S.V. Raju, learned Advocate for the petitioner, therefore, deserves to be turned down.
30. For the reasons recorded above, the continued detention of the petitioner vitiates and the detention order should be quashed and set aside.
31. In the result, the petition is allowed. The detention order dt. April 16,1987, passed against the petitioner by the District Magistrate, Surat, the detaining authority, is quashed and set aside, and the petitioner is ordered to be set at liberty forthwith, if not required in any other case. Rule made absolute.
Sub-section (4) of Section 3 of the P.B. Act,Sub-section (4) of Section 3 of the P.B. Act,Section 3 of the P.B. Act,