1. By way of the present petition, the detenue has challenged the order of detention dated 26.7.2012 passed by respondent No.2, District Magistrate, Sabarkantha at Himmatnagar, 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 commodity namely domestic LPG cylinders (by using it in automobile vehicles for commercial purpose) which is distributed under public distribution system and declared as Essential article, under Essential Commodities Act and acting in any manner prejudicial to the maintenance of supplies of essential commodity, namely, LPA cylinders to the community.
2. It is alleged against the detenue that on 23.7.2012, the detenue was found to be indulged in unauthorizedly supplied/transported domestic LPA cylinders which was distributed under the public distribution system and declared as essential articles under the Essential Commodities Act, by using it in automobile vehicle for commercial purpose. Therefore, the authorities felt that it is necessary to prevent him from black marketing and to maintain to supply of essential commodities, old stock of cylinder worth Rs. 20,840/- were seized by the Department in the presence of the witnesses. It is also alleged against the petitioner – detenue that at the time of inspection carried out at the garage of the petitioner, gas cylinders were seized from the garage. Therefore, it is alleged against the detenue that essential commodities worth Rs.1,10,844/- including empty and filled gas cylinders, Maruti Omni Car bearing Regn.No. GJ-1- HC.4961 and a 0.5 HP motor, regulator and pipe were seized from the petitioner by the Department. Since the petitioner has indulged in the act of illegal activities of selling gas cylinders which are supplied at the concessional rate to the fair price shop card holders and thereby misappropriated the stock of gas cylinders, which were found at the time of inspection carried out at the garage of the petitioner, an offence was registered, being CR No.II-3436 of 2012, before Modasa Rural Police Station and there are all possibilities that the detenue may get the bail order and continue his prejudicial activities. Therefore, the respondent No.2 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. Mr. M.T. Saiyad, learned Advocate, appearing on behalf of petitioner, has submitted that there is delay in deciding the representation and therefore, the continuation of detention becomes illegal and impermissible as per catena of decisions rendered by the Hon'ble Apex Court. He submitted that the representation dated 10.08.2012 was sent to the Central Government and thereafter reminder was sent on 4.10.2012. It is submitted that the State Government has sent the details to the Central Government only on 15.10.2012 which has been received by the Central Government on 18.10.2012 and as yet the representation has not been decided by the Central Government. 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 Central Government has not received any representation made by the detenu though the Authority had requested time and again to the State Government to send details regarding the actual date of detention and factual position/ clarifications on the points raised in the representation dated 10.8.2012 made by the detenue Shri Hasmibhai Gulamrasul Upad and the same has not been received by the Department.
It is also submitted by the learned Counsel for the Central Government that the Department has only received a copy of the writ petition being Special Civil Application No. 12901 of 2012. It has been categorically stated that though the Central Government had written letters on 5.9.2012 and 4.10.2012 requesting the State Government to provide details, the same has not been supplied and in view of the above facts, the representation could not be decided.
5 Ms. Rekha Patel, learned AGP, appears on behalf of respondents No.1 to 3. On behalf of the State of Gujarat, an affidavit is filed by District Supply Officer, Sabarkantha, but the affidavit is silent about when the representation of the detenue was decided. It appears from the affidavit-in-reply that the State Government has sent the details asked for by the Central Government only on 15.10.2010 and no reasons are assigned for not sending the same at the earliest.
6. I have heard learned Advocates appearing for the parties and perused the affidavit 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 taken about one month's time for forwarding the details which were called for by the Central Government. There is no explanation in the affidavit filed by the State Government that for what reasons the Authority did not send the details forthwith to the Central Government.
6. 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.
7. In the result, this Special Civil Application is allowed. The order of detention dated 26.07.2012 passed by respondent No.2, District Magistrate, Sabarkantha at Himmatnagar, 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.) pnnair