1. This petition under Article 226 read with Articles 14, 19 & 21 of the Constitution of India is preferred challenging the legality and validity of the order of detention dated 22nd September, 2011 passed by respondent No.2 - District Magistrate, Bhavnagar, in exercise of powers conferred under the Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act, 1980 ( "PBM Act" for short) as being invalid, null and void and violative of Articles 14, 19 & 21 of the Constitution of India.
2. While assailing the above order, learned advocate for the petitioner emphatically relied on the main ground that the Central Government has not approved the order of detention passed by the detaining authority in stipulated period and the detaining Authority has mechanically exercised the powers conferred upon him under the Act. He has also contended that there was no material available with the Detaining Authority to indicate as to how the maintenance of supplies of fortified Rice, Wheat Flour and Sugar was disturbed in any manner. He has contended that the detaining Authority has not forthwith reported the fact of detention to the State Government and, therefore, the order shall not remain in force for more than 12 days. Therefore, the order of detention is liable to be quashed and set aside. Reliance is placed upon the decision of Andhra Pradesh High Court in the case of B. Audi Lakshmi Vs. Government of A.P. And ors., reported in AIR 1984 Andhra Pradesh 282, wherein it was held that all the documents, together with copies of all the documents relied upon for passing the order of detention have to be furnished to the detenue, together with the order of detention. He further submitted that the set of documents does not show any date and it is shrouded with mystery as to whether the said requirement has been complied with. Reliance is placed on the decision of the Hon'ble Apex Court reported in AIR 1999 SC 684 in the case of Rajammal Vs. State of Tamilnadu and it is submitted that the authority is duty bound to give a justifiable explanation when the matter involves breach of fundamental right of the citizens guaranteed under Article 21 and 22(5) of the Constitution of India and admittedly, the representation is not decided. Learned advocate for the petitioner submitted that the petitioner is behind bars for more than 2 months. The Central Government has not at all considered the representation of the petitioner. Prima facie, there is no reason to detain the petitioner in custody. Therefore, detenu is required to be released.
3. Learned advocate for the respondent No.4 has opposed the contentions of the learned advocate for the detenu. He controverted all the allegations made by the learned advocate. He has filed affidavit on behalf of the Union of India which is ordered to be taken on record.
4. Learned APP also opposed the petition of the petitioner.
5. Having regard to the facts and circumstances, submissions made by learned advocates for respective parties and considering the law laid down by the Hon'ble Apex Court as referred above, I deem it just and proper to quash and set aside the impugned order dated 22nd September, 2011, passed by the authority.
6. In view of the above discussion the petition is allowed. The impugned order of detention passed by the District Magistrate, Bhavnagar dated 22.09.2011 is hereby quashed and set aside. The detenu is ordered to be set at liberty forthwith, if he is not required in connection with any other case by the Authority. Rule is made absolute with no order as to costs.
( M.D.Shah, J ) srilatha Top