1. By way of the present petition, the detenue has challenged the order of detention dated 23.7.2012 passed by respondent No.2, District Magistrate, Sabarkantha 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, 'PBM Act') with a view to prevent the detenu from black marketing essential commodities food grains like wheat, rice, sugar and kerosene etc and acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. Pursuant to the order dated 28.9.2012, respondent No.2 has filed affidavit-in-reply and respondent No.4 i.e. Union of India has also filed affidavit-in-reply to the petition.
2. The brief facts arising from the case are as under:
2.1 That the petitioner-detenu was running a fair price shop at Sayra, Taluka – Modasa, District Sabarkantha and was given licence for the same by the authority. When the team of Officers from the District Supply Office visited the shop run by the petitioner, several infirmities were found by the authority. After examining the stock of the essential commodities and examining the accounts, stock register etc., the authority found that the detenu was carrying on the activities contrary to provisions of Essential Commodities Act and contrary to the licence issued for running a fair price shop. After collecting material and recording statements of several card-holders, the entire case was put up before the District Magistrate to take action under the provisions of PBM Act. The District Magistrate, Sabarkantha, after considering the material put before him, found that there was a need to prevent the petitioner from carrying further illegal activities which would be prejudicial to the maintenance of supply of commodities essential to the community at large and, therefore, passed the impugned order on 23.7.2012. Pursuant to the said detention order, the petitioner-detenu was detained by the authority on 23.7.2012 itself and was sent to Bhavnagar District Jail.
3. The said detention order has been challenged by the petitioner on various grounds. However, Mr.H.R.Prajapati, learned Advocate appearing on behalf of petitioner has pressed the grounds of non-deciding the representation made by the detenu to the authority for considering the case and for revoking the order of detention passed by District Magistrate.
4. Though the affidavit is filed on behalf of respondent No.2, who is District Magistrate, it appears that, instead of District Magistrate, the District Supply Officer has filed the affidavit who is not party in the proceedings.
5. Today, learned AGP Mr.Janak Raval appearing for the respondents No.1 to 3 has placed a communication in which the District Supply Officer has stated that, though, the representation sent by detenu was received on 28.9.2012 in the office of Collector and 3.10.2012 in the office of District Supply Officer, the same is yet not decided due to overburden of the work.
6. The Under Secretary of Union of India by filing an affidavit in this matter has stated that the representation made by the detenu has not been received by the Central Government and, therefore, there is no question of considering the representation submitted by the detenu.
7. I have heard learned advocates appearing for the parties. It appears that, after the detention on 23.7.2012, the petitioner-detenu made a representation on 20.9.2012 to the District Magistrate which was received on the same day. However, the same is not yet decided as stated hereinabove. The office of the District Magistrate has even not forwarded the representation made by the detenu and, therefore, the Central Government has not decided the representation made by the petitioner-detenu.
8. Recently in case of Ummu Sabina Vs. State of Kerala, 2012 (1) R.C.R. (Criminal) P.182, the Apex Court, relying upon several judgments, has held that the representation made by the detenu 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 others (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 has taken long time in deciding the representation without any explanation. 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 23.07.2012 passed by respondent No.2, District Magistrate, Sabarkantha 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.) syed/