1. By way of the present petition, the detenu has challenged the order of detention dated 10.7.2012 (Annexure 'A'), passed by the District Magistrate, Vadodara, 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 and acting in any manner prejudicial to the maintenance of supplies of essential commodities essential to the community.
2. The petitioner-detenu is residing at Padara, District-Vadodara and he is a driver of tempo. When he was transporting some kerosene barrel from one place to another along with the owner of the kerosene barrel, he was intercepted and accordingly panchnama was drawn on that day. Subsequent to this incident, the Authorities recorded several statements ultimately, he came to be detained under the provisions of the Act.
3. Mr. HR Prajapati, learned Advocate appearing on behalf of the petitioner has submitted that though the representation is made to the District Magistrate, Vadodara for revoking the detention order, the same has yet not decided by the District Magistrate, Vadodara. He has further argued that though representation addressed to the Union of India was sent to the District Magistrate, Vadodara with a request to forward the same, the same has not been forwarded to the Union of India. In view of this aspect, he has submitted that the Authorities had committed breach of the mandate of Article 22(5) of the Constitution and only on this ground the detention order is required to be quashed. Pursuant to the issuance of rule, a counter affidavit on behalf of the Union of India is sworn by under Secretary in the Department of Consumer Affairs, New Delhi, wherein it is stated that the department has not received any representation and therefore, the same has not been decided. No affidavit-in-reply has been filed by the State of Gujarat.
4. Mr. Devang Dave, learned AGP, however, very strenuously contended that as the representation in question has been drafted and forwarded by Mr Prajapati, advocate of the detenu, who is well-versed in detention laws, it was not obligatory for the detaining authority to forward the copy of the representation to the Central Government. It is admitted by him that the representation was forwarded to the State Government and not to the Central Government. It is argued by Mr Dave that the petitioner-detenu could also send his representation to the competent authority but he has failed to do so and now he cannot take the plea that duty is cast upon the petitioner to send representation to the concerned authority. Therefore, also the detenu is not entitled to get any relief.
5. In this case, the representation was not forwarded by the detaining authority to the Central Government. To that extent, the detenu has not been afforded the opportunity of making representation to the Central Government against his detention. In para 10, it has been held by the Apex Court in Amir Shad Khan's case (supra) 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.”
5.1. Taking into consideration the ratio laid down by the Hon'ble Supreme Court, duty is cast on the District Magistrate to send the representation to the competent authority for its consideration. However, he has failed to do so. There is therefore, no force in the argument advanced by Mr. Devang Dave that as the learned advocate who is well versed in detention laws has drafted the representation, it was not obligatory that the Detaining Authority to forward copy of the representation to the Central Government.
Similarly, in the judgment of this court in Special Civil Application No.765 with 766 of 1993 decided on 28.7.1993 wherein also it was held that merely because the detenu has been assisted by an advocate, that does not absolve the detaining authority from its duty to forward the detenu's representation to all the authorities who have a right to consider the representation.
6. It is an admitted fact that the detenu has made representation dated 31.7.2012 through his advocate for forwarding it to the Central Government as well as State Government. In spite of that the said representation was not forwarded to the Central Government for its consideration and so also the order of detention dated 10.07.2012 passed by the District Magistrate, Vadodara which is produced at Annexure 'A', is liable to be quashed and set aside. Obviously, therefore, there is breach of the mandate contained in Article 22 (5) of the Constitution, and on that ground alone the petition should succeed. Consequently, the impugned order of detention is liable to be quashed and set aside.
7. In the result,this Special Civil Application is allowed. The order of detention dated 10.7.2012 passed by the District Magistrate, Vadodara 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.) Ashish N