1. By way of the present petition, the detenu has challenged the order of detention dated 02.07.2012 passed by respondent No.1 District Magistrate, Amreli 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 (for short, 'the Act') with a view to prevent the petitioner from black marketing essential commodities like kerosene etc., and acting in any manner prejudicial to the maintenance of supplies of essential commodities essential to the community.
2. The brief facts emerges from the record of the case are as under:
2.1 That the authority received information that the petitioner was selling kerosene in a cabin having no licence issued by the authority to sell the same. Pursuant to raid carried out by the officers of the authority, it was found that the petitioner was selling kerosene of 655 litres at the said cabin. A raid was also carried out at the residence of the petitioner from which the authority found about 827 litres kerosene without any licence to keep the same or to sell the same. After preparing the panchnama and having found sufficient material against the petitioner, the District Magistrate, Amreli recorded his satisfaction so as to prevent the petitioner from acting in any manner which would be prejudicial to the maintenance of supplies of essential commodities and hence the Authority has passed the impugned detention order under the Act.
3. Though, the petitioner has raised several legal contentions challenging the detention order, but, has restricted his arguments about the deciding the representation at a belated stage by the Central Government which vitiates the detention order. Mr.Bhavin Rayani, learned Advocate appearing on behalf of petitioner has submitted that, though, the representation was made by the detenu on 14.7.2012, the Central Government decided the same on 13.8.2012 , that means, the representation was decided after about one month from the date of the representation, and therefore, the continuation of detention has become illegal and impermissible and the detention order may be quashed.
4. Mr. M. Iqbal A Shaikh, learned Standing Counsel appearing for the Central Government has submitted that the representation was received by the Central Government on 19.7.2012 and the Central Government called for the details from the State Government which was received by the department on 31.7.2012. Mr.Shaikh has produced a xerox copy of affidavit of one Mr.Pumchinkhup Guite, Under Secretary, Department of Consumer Affairs, New Delhi. It appears from the said affidavit that there is no explanation by the department for taking about fourteen days time to decide the representation and hence the detention order is vitiated.
5. Recently in case of Ummu Sabina Vs. State of Kerela, 2012 (1) R.C.R. (Criminal) P.182, the Apex Court, relying upon several judgments, has held that the representation made by the detenu 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 others (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 has taken long time in deciding the representation without any explanation.
Therefore the continuation of detention has become illegal and impermissible.
6. In the result, this Special Civil Application is allowed. The order of detention dated 02.07.2012 passed by respondent No.1 District Magistrate, Amreli is hereby quashed and set aside. The detenu is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. Direct service is permitted.
(A.J. DESAI, J.) syed/