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The Madhya Pradesh High Court declared the detention of a person accused of hoarding oxygen cylinders and selling them at higher price, to be invalid due to non-application of mind by the District Magistrate. The bench of Justice Prakash Shrivastava and Vishal Dhagat held that the detention order failed to take note of the fact that the petitioner was already in custody when the detention order was being passed, and it was required that his detention is justified with cogent materials that there is likelihood of his release and in view of his antecedent activities, he must be detained in order to prevent him from indulging in such prejudicial activities.
The petitioner, Rajeev Kumar Jain, challenged the order of his detention passed by the District Magistrate, Satna under section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, as also the state government’s order approving the same.
The petitioner was booked on the basis of the written complaint of Drug Inspector, Satna, alleging that the petitioner who is the Manager of M/s Vindhya Engineering Company had illegally stocked oxygen cylinders in his warehouse and was selling oxygen cylinders at higher price to the general public. The police submitted that the petitioner did not have a valid licence for possession of non-metal oxygen (medical grade) and oxygen cylinders were seized from his godown. Accordingly, he was detained and the Advisory Board confirmed his detention for 3 months until August 3.
The counsel for the petitioner argued that when the detention order was passed, the petitioner was already taken into custody, and he could have been eligible for release on regular bail had he not been detained. “The fact that the petitioner was in custody and his likelihood of release on bail has not been considered by the detaining authority, therefore, the order of detention suffers from nonapplication of mind,” the counsel submitted. He also contended that the petitioner’s representation was not considered by the state government and was not placed before the Advisory Board. He has also submitted that the petitioner has no criminal antecedents and all oxygen cylinders were empty and oxygen cylinders are not the essential commodities.
The state’s counsel argued that oxygen is covered in the Schedule 1 of the National List of Essential Medicines, 2015 and that the use of liquid oxygen was allowed by the Government only for medical purposes keeping in view the Covid 19 Pandemic. He also submitted that a complaint was received against the petitioner that he was selling the oxygen at an exorbitant rate, therefore, the raid was conducted and oxygen cylinders were seized and that only 20 LPG cylinders were empty, rest were all filled.
Court’s findings
The court observed that a minute perusal of the detention order as also the grounds of detention clearly reveal that there is no mention of the fact that the petitioner was in custody and that he had applied for bail or there is his possibility of being released on bail.
In Rameshwar Shaw Vs. District Magistrate, Burdwan and anr AIR 1964 SC 334, the petitioner was detained under Preventive Detention Act, 1950, while he was already in custody and he court held that in such a case the satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner was clearly absent.
In Vijay Kumar Vs. State of Jammu & Kashmir and others, (1982)2 SCC 43, it has been held that if the detenu is already in jail for an alleged criminal offence when detention order was passed then the order must have clear mention of this fact and indicate that such detention was not sufficient to prevent the detenu from the prejudicial activities covered by the preventive detention law.
In Binod Singh Vs. District Magistrate, Dhanbad, Bihar and others, (1986)4 SCC 416 the court had held that if the prospects of the detenu’s imminent release are not considered then the continued detention is illegal on the ground of non-application of mind to the relevant factors.
The court inferred from these judgements and few other relevant judgements reiterating these observations, that “if the detenu is in custody at the time of passing the detention order then it is necessary for the Detaining Authority to mention this fact in the detention order and also consider the prospects of release of the detenu on bail and apprehension that the detenu would indulge in prejudicial activities in case of his release on bail”. The court took the view that if the detenu is in jail then the compelling necessity justifying the detention must be reflected to sustain the detention order.
The court found that the detention order suffered non-application of mind by the Detaining Authority as it had not stated its awareness of the fact the petitioner was already in custody, and also had not applied its mind to the possibility of the petitioner being released on bail.
The court thus allowed the petition and set aside the detention order and the state government order affirming the same.
The complete judgement may be read here:
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