1. By way of the present petition, the detenue has challenged the order of detention dated 05/10/2012, passed by respondent No.2, District Magistrate, Navsari, in exercise of powers conferred under sub-section (2) of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 ('the Act' for short ) with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of supplies of essential commodities essential to the community.
2. The brief facts emerging from the record are as under:
That on 5.10.2012I the local Crime Branch, Navsari, intercepted a maruti van, which belongs to the petitioner, having prior information that `blue kerosene’, which is an essential commodities, was being illegally transported to some other place for selling the same in the black market against the official regulations. The said vehicle was checked and about 400 liters of `blue kerosene’ was found which is a prohibited item under the Act and thereby the petitioner tried to misappropriate a stock of blue kerosene wroth Rs.16,000/- without any licence or any legal record and, therefore, the same was seized by the Department in presence of the witnesses. The said vehicle was found to be driven by the petitioner himself. Pursuant to the inquiry, it was revealed that, the petitioner had purchased the said article from one Goharilal Udaji Khatik, resident of village Maroli, Taluka- Jalalpor, District-Navsari. An offence under sections 3, 7 of the Essential Commodities Act,1955 has been registered against the petitioner and the same came to be registered at C.R.No.II- 90 of 2012, before Navsari Rural Police Station. Since there are all possibilities that the detenue may get the bail order and continue his prejudicial activities, the respondent No.2 has recorded his satisfaction so as to preventing the petitioner from acting in any manner which would be prejudicial to the maintenance of supplies of essential commodities and passed the impugned detention order under the Act. Pursuant to the order, the petitioner – detenue came to be arrested and has been detained at Rajkot District Jail.
That it is the case of the petitioner – detenue that while he was under detention, he made representation to the State Government as well as Central Government on 10.10.2012 but the same were not decided by the authority as expeditiously as possible and, therefore, there is a delay in deciding the representation by the Authorities concerned.
3 Mr.Harshad Prajapati, learned Advocate, appearing on behalf of petitioner has submitted that the petitioner – detenue, while he was under detention, made representations to the State Government as well as Central Government on 10.10.2012, The Detaining Authority, in fact, received the representation on 18.10.2012, but the same was decided only on 22.10.2012. He further submitted that, though, the representation was sent to the Central Government which was also not decided as expeditiously as possible. He, therefore, submitted that there is delay in deciding the representations by the Detaining Authority as well as by the Central Government and therefore, the continuation of detention becomes illegal and impermissible as per catena of decisions rendered by the Hon'ble Apex Court and requested that the detention order may kindly be quashed and set aside the petitioner – detenue may kindly be released forthwith.
4 On behalf of the State of Gujarat, an affidavit-in- reply is filed by District Magistrate & Collector, Navsari. Learned AGP Mr.Devang Dave, has tried to explain the delay caused in deciding the representation made by the petitioner – detenue, but he is not able to substantiate the said delay.
5. Mr. M. Iqbal A Shaikh, learned Standing Counsel, appearing for the Central Government has submitted that there is no delay on the part of the Central Government in deciding the representation. Though, affidavit has not been filed on behalf of the Union of India, he has tried to explain the time consumed by the Union of India in deciding the representation by stating that the Union of India requested the State Authority to supply the information about the detenue, but the English version of the representation sent by the petitioner was received by the Central Government only on 23.10.2012. After considering the representation and material received from the State Government, the representation was decided on 30.11.2012 and, therefore, there is no delay on the part of the Central Government in deciding the representation.
6. I have heard learned Advocates appearing for the parties and perused the affidavit-in-reply filed by the State Government and the grounds of detention annexed with the detention order. Now considering the above facts, it appears that, the State Government has not decided the representation immediately and also not forwarded the details which were called for by the Central Government. There is no explanation in the affidavit-in-reply filed by the State Government that for what reasons the Authority did not send the details to the Central Government immediately.
7. Recently in case of Ummu Sabina Vs. State of Kerala, as reported in 2012 (1) R.C.R. (Criminal) P.182, the Apex Court, relying upon several judgments, has held that the representation made by the detenue shall be considered as soon as possible as expressed in sub-clause (5) of Article 22 of the Constitution of India. It was further held by the Apex Court in case of Ummu Sabina (supra) by considering the case of Km. Abdulla Kunhi and B.L.Abdul Khedar Vs. Union of India and Ors., as reported in (1991)1 SCC 423 rendered by the Constitutional Bench that “there should not be any supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in disposal of representation would be breach of constitutional imperative and it would render the continued detention impermissible and illegal.” In the present case, the Authority did not decide the representation as early as possible without any explanation. Therefore the continuation of detention has become illegal and impermissible.
8. In the result, this Special Civil Application is allowed.
The order of detention dated 5.10.2012 passed by respondent No.2, is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. Direct service is permitted.
pnnair (A.J.DESAI, J.)