IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 16202 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI
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1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO
2 To be referred to the Reporter or not?NO
3 Whether their Lordships wish to see the fair copy of the judgment?NO
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder?NO
5 Whether it is to be circulated to the civil judge? NO ================================================================ JIGNESH @ MUNNABHAI RAJNIBHAI CHOTAI Versus DISTRICT MAGISTRATE RAJKOT & ORS ================================================================ Appearance:
MR PRAVIN GONDALIYA, ADVOCATE for the Petitioner MR JANAK RAVAL, AGP for the Respondents No. 1, 2 & 4 MR M.IQBAL A SHAIKH, ADVOCATE for the Respondent No. 3 =========================================================== CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 28/12/2012
ORAL JUDGMENT
1. By way of the present petition under Articles 19, 21, 22 and 226 of the Constitution of India, the detenue has challenged the order of detention dated 19/10/2012, passed by respondent No.1, District Magistrate, Rajkot, 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 9.7.2012, during the patrolling by the Supply Officer, it was found that from a godown at Upleta Town, essential article, namely, wheat, was being transported to another place which was barred under the provisions of Act as well as the order issued under the Act. The godown was raided and it was found that the said godown was used by three persons, namely, Jignesh @ Munnabhai Rajnibhai Chotai, Vimalbhai Bhadabhai Chandravadiya, and Altaf Amanbhai Pinjara. All these persons are carrying on business of selling wheat in the name of “Vanraj Traders”. When the godown was raided, wheat bags having FCI mark were found and all these persons could not produce any stock register, bills, etc. about the said wheat bags. All these persons were interrogated and they have stated that they have purchased these wheat bags from one Chandulal Rudabhai Revar, who is a licence holder to distribute the said wheat at a reasonable price. The said Chandulal Rudabhai Revar is the petitioner of Special Civil Application No.16531 of 2012 and his petition was allowed and detention order is quashed and set aside and co- detenue – Almasbhai Yunusbhai Parekh has also filed a writ petition being Special Civil Application No. 16223 of 2012 which is allowed the detention order was set aside.
That the fair price shop was raided and tallied the stock statement, it was found that several essential articles including wheat were not in consonance with the stock, which were required to be kept by the licence holder. It is the case of the petitioner that he had purchased wheat from one Vanraj Traders. Thereafter, the Authority thought it fit to detain the petitioner so that he can be prevented from black-marketing and selling the same in the open market on higher price and, therefore, the report submitted by the Sponsoring Authority was accepted by the District Magistrate, Rajkot and the impugned order of detention was passed.
3 Pursuant to the order dated 5.12.2012 passed by this Court, the Detaining Authority has filed an affidavit-in-reply on 27.12.2012 and Union of India has filed a counter affidavit on 26.12.2012 through Under Secretary, Department of Consumer Affairs, New Delhi and it has been stated that the representation dated 1.12.2012 made by the detenue was not received in the Department and, therefore, the Central Government could not decide the representation. The State Government has filed an affidavit-in-reply of the respondent No.1 – Detaining Authority and denied the averments and grounds made in the petition and tried to substantiate the grounds of detention order passed by the Detaining Authority.
4 Mr. Pravin Gondaliya, learned Advocate, appearing on behalf of petitioner has submitted that the petitioner – detenue, while he was under detention, made separate representations to the State Government as well as Central Government. The Detaining Authority, in fact, received the representation but the same was not yet decided by the State Government. He further submitted that, though, the representation was sent to the Central Government which was also not decided. He, therefore, submitted that there is delay in deciding the representation 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.
5 On behalf of the State of Gujarat, learned AGP Mr. Janak Raval, has appeared and tried to reiterate the contentions and averments made in the reply affidavit filed by the Detaining Authority.
6. 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. He filed a counter affidavit of the Under Secretary, Department of Consumer Affairs, New Delhi and submitted that the representation purported to have been sent on behalf of the detenue has not been received in the Department so far.
7. I have heard learned Advocates appearing for the parties and perused the affidavit-in-reply filed by the Central Government and the grounds of detention annexed with the detention order. Now considering the above facts, it appears that, the State Government has not yet decided the representation so far and also not forwarded the details which were called for by the Central Government.
8. 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 at all . Therefore the continuation of detention has become illegal and impermissible.
9. In the result, this Special Civil Application is allowed. The order of detention dated 19.10.2012 passed by respondent No.1, 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.)