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 Cylinder ('LPG Cylinder') and acting in any manner prejudicial to the maintenance of supplies of essential commodities essential to the community.
The petitioner-detenu is residing in Rajkot and he was serving as delivery-man in Dhara Gas Agency, Rajkot. Upon prior information, raid was conducted on 6.3.2012 by Officers of Rajkot District Supply Department to the house of the petitioner. In the house of the petitioner as well as in the neighbouring house of one Kaushikbhai, 15 gas cylinders came to be found out. Those LPG Cylinders were meant for domestic purpose, but the gas contained in those cylinders was transmitted to other cylinders, and those cylinders were sold for commercial purpose. Pursuant to said incident, an FIR came to be registered against the petitioner and others on 17.3.2012 being C.R.No.22 of 2012 with Malaviyanagar police station, Rajkot. Pursuant to said FIR, the petitioner was arrested on 28.3.2012 and before he could move for bail, a proposal was made on 29.3.2012 for detention and the detention order came to be passed on 30.3.2012. It is stated in the detention order that before the petitioner gets bail or before he moves concerned Court for stay order, the detention order was passed.
Heard Mr.Prajapati, learned advocate for the petitioner and Ms.Pathak, learned AGP for the respondents No.1, 2 and 3 and Mr.Shaikh, learned Central Govt.standing counsel for respondent No.4 - Union of India.
Mr.Prajapati, learned advocate for the petitioner, at the outset, drew my attention to the relevant papers annexed with this petition, including the detention order dated 30.3.2012. It is submitted that in the instant matter, the FIR came to be registered on 17.3.2012 and the petitioner was arrested on 28.3.2012 and was remanded to police custody for one day by the learned Magistrate and the proposal was made on 29.3.2012 for detention and immediately without application of mind, the detention order came to be passed on 30.3.2012 on extraneous grounds. It is submitted that the petitioner was mere employee in Dhara Gas Agency. He was wrongly implicated in the incident. It is further submitted that even otherwise, in the detention order, nothing emerges that the petitioner was involved in such activity in past. That, thus, on the basis of a solitary incident, he was branded as black marketeer. Mr.Prajapati, learned advocate for the petitioner further submitted that the petitioner made representation on 10.4.2012. Considering the reply affidavit filed on behalf of respondent No.4 - Union of India, the representation of the petitioner along with relevant papers in English translation, came to be received by the concerned department of the Union of India on 11.5.2012. Thus, there was delay of one month. It is further submitted that as per the reply affidavit filed on behalf of respondent No.4 - Union of India, the petitioner was informed by telegram dated 18.5.2012 that his representation was rejected and, thus, there was delay of 7 days to communicate the order. My attention was drawn to the reply affidavit filed by the respondent No.2 - District Magistrate, Rajkot and it is submitted that no satisfactory explanation is forthcoming to explain the aforesaid delay. Mr.Prajapati, learned advocate for the petitioner relied upon the case of Amir Shad Khan v. L. Hmingliana reported in AIR 1991 SC 1983 as well as decision of this Court dated 28.7.1993 delivered in Special Civil Application No.765 & 766 of 1993 and the decision dated 22.11.2007 delivered in Special Civil Application No.16785 of 2007.
Ms.Pathak, learned AGP for respondents No.1,2 and 3 took me through the detention order dated 30.3.2012 passed by respondent No.2 - District Magistrate, Rajkot and submitted that the order is perfectly legal and valid. My attention was also drawn to a notification issued by the Deputy Secretary, Food & Supplies Department of the State Government dated 10.12.2001 and submitted that the representation was outright time-barred and, hence, rightly rejected.
Mr.Shaikh, learned Central Govt.standing counsel took me through the reply affidavit filed by respondent No.4 - Union of India and submitted that the representation along with relevant papers in English translated version, came to be received by the Central Government on 11.5.2012 and on 18.5.2012 by telegram, a reply was sent to the petitioner that his representation was rejected.
I have taken into consideration the submissions advanced on behalf of both the sides and it transpires that as per the case of the State Government, at the relevant time, the petitioner was serving as mere delivery-man in Dhara Gas Agency. It further transpires that pursuant to the incident, an FIR came to be registered on 17.3.2012 against the petitioner and others. The petitioner was arrested on 28.3.2012 and was remanded to police custody till 29.3.2012. Considering the petition, it transpires that, proposal was made for his detention on the same day i.e. on 29.3.2012 and the detention order was passed on next day i.e. 30.3.2012. It further transpires that there is nothing on record that, in past, the petitioner was involved in similar activity. It further transpires that on 10.4.2012, the petitioner made representation and as per the reply affidavit filed on behalf of respondent No.4 - Union of India, the representation with relevant papers in English translated version, came to be received on 11.5.2012 i.e. after about one month from the date of the representation. Even after receipt of the representation, the concerned department of the Union of India consumed about a week to deal with the representation, and on 18.5.2012, by telegram, the petitioner was informed about the rejection. In the reply affidavit filed by the Union of India, no satisfactory explanation is forthcoming about the delay in processing the representation. Considering the reply affidavit filed by the respondent No.2 - District Magistrate, Rajkot, no satisfactory explanation is forthcoming about the delay of more than one month in forwarding the representation with relevant papers in English translated version to the concerned department of the Central Government. My attention was drawn to the circular dated 10.12.2001, but considering the said circular, and more particularly paragraphs 38 and 39, it nowhere transpires that any representation received after 12 days, shall be outright rejected. On the contrary, considering paragraph 39 in said circular, it has been specifically stated that even in representation received after 12 days, the concerned District Magistrate was not authorised to dismiss such representation only on that ground and no such endorsement shall be made to the effect that the representation was dismissed or that the representation was not accepted.
In paragraph 10, Amir Shad Khan's case (supra), Hon'ble Apex Court observed that, "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."
In above view of the matter, this Court is of the opinion that the circumstances in which the order of detention came to be passed, it cannot be said that the said detention order was passed after proper application of mind by the concerned authority. Over and above this, the way in which the representation made by the petitioner came to be dealt with and the delay caused while dealing with such representation and while forwarding such representation to the Central Government and considering the decisions relied upon on behalf of the petitioner, this Court is of the opinion that the instant petition deserves to be allowed.
In the result, this Special Civil Application is allowed. The order of detention dated 30.3.2012 passed by the 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.
Direct service is permitted.
(J.C.UPADHYAYA, J.) (binoy) Top