1. By way of this Special Civil Application under Article 226 of the Constitution of India, the present petitioner has challenged the order of detention dated 30/3/2012 (Annexure 'A'), passed by the 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 (for short, 'the Act') with a view to prevent the petitioner from black marketing essential commodities like Liquid Petroleum Gas [LPG] and acting in any manner prejudicial to the maintenance of supplies of essential commodities essential to the community.
2. The petitioner-detenu is residing in Rajkot. On 6/3/2012, upon prior information, concerned officers of Rajkot District Supply Department raided the house of the petitioner and 15 LPG cylinders came to be found from his house. It was further revealed that the LPG cylinders were meant for domestic purpose, but the gas contained in those cylinders were transmitted in commercial cylinders and the petitioner used to sell such gas for commercial purpose. It was further revealed that the gas cylinders were obtained from one gas agency named Dhara Gas Agency, Rajkot. An FIR was registered against the petitioner and others on 20/3/2012 in Malaviyanagar Police Station being CR No. 22/2012. The petitioner was arrested in connection with this offence on 28/3/2012 and thereafter he was released on bail by the competent authority. On 30/3/2012 the respondent no. 2 - District Magistrate, Rajkot passed the detention order.
3. Heard Mr. HR Prajapati, Ld. Advocate for the petitioner and Ms. Shruti Pathak, Ld. AGP for the respondent nos. 1 to 3 and Mr. Shaikh, Ld. Special Counsel for the respondent no. 4 Union of India.
4. Mr.
Prajapati, Ld. Advocate for the petitioner, at the outset, submitted that the petitioner was falsely implicated in the instant offence and was wrongly detained by the detaining authority. In connection with the FIR lodged against him and others, he was released on bail. There is nothing that, in past he was involved in similar type of activity. It is further submitted that the petitioner made representation on 9/4/2012. The same was not immediately and duly processed by the concerned authority. It is submitted that in the reply affidavit filed by the respondent no. 2 District Magistrate, Rajkot, no satisfactory explanation is forthcoming about the delayed process of representation. Even in the concerned Department of Central Government, the copy of representation with relevant papers translated in English, came to be received on 11/5/2012. It is thus, submitted that there was delay of more than one month in forwarding of the representation to the Central Government. Even as per the reply affidavit of Central Government, the representation came to be rejected on 21/5/2012 as communicated to the petitioner and thus, even there was delay of 10 days caused by the Central Government in dealing with the representation. Mr. Prajapati, Ld. Advocate relied upon the decision rendered by the Hon'ble Apex Court in Amir Shad Khan v. L. Hmingliana (AIR 1991 SC 1983) and (2) judgment of this Court dated 28/7/1993 delivered in Special Civil Application No.765 & 766 of 1993 and the judgment of this Court dated 22/11/2007 passed in Special Civil Application No. 16785/2007 and decision rendered in the case of R. Kalavathi v. State of T.N. Reported in [2006] 6 S.C.C. 14.
5. Ms Shruti Pathak, Ld. AGP for the respondent nos. 1 to 3 vehemently opposed this petition and submitted that the detention order dated 30/3/2012 passed by the respondent no. 2 District Magistrate, Rajkot is perfectly legal and valid. It is further submitted that the representation was promptly processed and there was no delay. My attention was drawn to a circular dated 10/12/2001 issued by the Deputy Secretary, Food and Supply Department of the State Government and submitted that as per the circular, the representation was received by the competent authority after 12 days and thus the representation was time barred.
6. Mr. Shaikh, Ld.
Standing Counsel for the respondent no. 4 Union of India, drawing my attention to the reply affidavit filed on behalf of the respondent no. 4, submitted that the translated version of the representation and the annexed papers were received by the Central Government on 11/5/2012 and vide telegram dated 21/5/2012 the petitioner was informed that his representation was rejected.
7. Having considered the submissions advanced on behalf of both the sides, so also considering the relevant papers annexed with this petition, it transpires that pursuant to the FIR registered against the petitioner and others on 28/3/2012, the petitioner was arrested and was released on bail. It further transpires that considering the detention order, nothing appears that in past the petitioner was indulging in such activity. In above view of the matter, the detention order is passed on the basis of the solitary incident.
8. One glaring fact which emerges from the papers of the instant case is that on 9/4/2012 the petitioner made the representation. Considering the reply affidavit filed by the respondent no. 2, nothing specifically emerges as to when the said authority received the representation and when the same was forwarded to the Central Government with relevant papers and translated version. Considering the reply affidavit filed on behalf of the respondent no. 4 - Union of India, it emerges that the representation with relevant papers translated in English came to be received by the concerned Department of the Central Government on 11/5/2012. Thus, the delay can be said to be more than one month. It further transpires that the Central Government vide telegram dated 21/5/2012 informed the petitioner about the rejection of the representation and thus even after receipt of representation, there was delay of about 10 days in dealing with the representation. The Apex Court in para. 10 in Amir Shad Khan's case (supra) observed as under :
"It must be realised that when a person is placed under detention he has certain handicaps and if he makes a request that a representation prepared by him may be forwarded to the Central Government as well as the State Government for consideration after taking out copies thereof it would be a denial of his right to represent to the Central Government if the Detaining Authority as well as the State Government refuse to accede to his request and omit to forward his representation to the Central Government for consideration. It is difficult to understand why such a technical and rigid view should be taken by the concerned authorities in matters of personal liberty where a person is kept in preventive detention without trial. Detenus may be literate or illiterate, they may have access to legal advice or otherwise, they may or may not be in a position to prepare more than one copy of the representation and if they make a request to the authorities which have the facilities to take out copies to do so and forward them for consideration to the Central Government would it be just and fair to refuse to do so? In such circumstances refusal to accede to their request would be wholly unreasonable and in total disregard of the right conferred on the detenu by Article 22 (5) of the Constitution read with section 11 of the Act. We are, therefore, of the opinion that the Detaining Authority as well as the State Government were not justified in taking a hyper-technical stand that they were under n o obligation to take out copies of the representation and forward them to Central Government. We think that this approach on the part of the Detaining Authority and the State Government has robbed the appellants of their constitutional right under Article 22 (5) read with Section 11 of the Act to have their representation considered by the Central Government. The request of the detenus was not unreasonable. On the contrary the action of the Detaining Authority and the State Government was unreasonable and resulted in a denial of the appellants' constitutional right. The impugned detention orders are, therefore, liable to be quashed."
9. I have taken into consideration the ratio laid down by the Hon'ble Supreme Court in the decisions relied upon on behalf of the petitioner and the decisions of this Court. Considering the facts and circumstances of the case, it clearly transpires that the respondent no. 2 in the reply, did not assign any satisfactory ground for the delay. Even considering the circular dated 10/12/2001, it transpires that even if any representation is received after 12 days, the same cannot be outright rejected by the District Magistrate by observing that the representation was rejected or that it was not accepted.
10. In above view of the matter, this Court is of the opinion that the instant petition deserves to be allowed.
11. In the result, this Special Civil Application is allowed.
The order of detention dated 30/3/2012 passed by the respondent no. 2 - District Magistrate, Rajkot, 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. DSP.
(J.C.UPADHYAYA, J.) * Pansala.
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