[1] By way of this petition, the detenu has challenged the order of District Magistrate, Navsari dated 23.10.2011 passed in exercise of powers under Section 3(2) of the Prevention of Black Marketing & Maintenance of Supplies of Essential Commodities Act, 1980 (“P.B.M. Act” for short) detaining him.
[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 supply of kerosene was disturbed in any manner. It is also submitted that petitioner was arrested on 01.11.2011 and he was released on 02.11.2011. It is also submitted that stock of kerosene was seized on 28.06.2011 and the order of detention is passed on 23.10.2011, therefore, there is unexplained delay of about four months in passing the impugned detention order. It is submitted that till date representation made by the petitioner is not decided by the State Government as well as the Central Government. Therefore, the order of detention is liable to be quashed and set aside.
[2.2.] Learned advocate for the applicant has relied upon following decisions in support of above submissions:
(a) Salamkhan Bachchekhan Pathan v/s. Commissioner of Police, Ahmedabad [1987 (O) GLHELHC 210802]
(b) Sangitaben Anilkumar Patel v/s. District Magistrate, Himmatnagar [1999 CRI.L.J. 3060]
[3] Learned APP has opposed the petition of the petitioner. Learned advocate for the respondent No.4 – Union has opposed the contentions of the learned advocate for the detenu. He controverted all the allegations made by the learned advocate for the petitioner.
[4] Heard learned advocates for the respective parties. There is no explanation by the State Government and Central Government in not considering the representation made by the petitioner promptly. Hence, there is no substance in the arguments advanced by the standing Counsel for the Central Government that the representation could not be considered. In the case of Rajindra v/s. Commissioiner of Police, Nagpur Division reported in 1994 Suppl (2) SCC 716 , the Hon'ble Apex Court has held in para 2 as under :
“.......An effort was made by the learned Additional Solicitor General to persuade us to adjourn the matter to enable the Central Government to produce the file for our perusal. It appears that of late the Central Government does not show that sense of responsibility which is expected of it while dealing with detention cases, namely, of filing a counter in time before the Court dealing with the Habeas Corpus petition. Needless to say that the Central Government should be alive to the need to act promptly in such detention cases where the liberty of an individual is concerned. The Court is expected to go by the pleadings and the Central Government is expected to place the factual material in connection with the detention order by filing a counteraffidavit so that the petitioner has an opportunity to meet with that factual information. The indulgence shown by the courts in pursuing the file seems to have given an impression that the Central Government is under no obligation to file a counter affidavit to explain the delay. We propose to remove this impression once and for all if it persists and to impress upon the Central Government that it is under obligation to file its counter within the time permitted by the Court failing which the case may go by default. Let it be clearly understood that production of the file is not a substitute for a counter to be filed by the Central Government. The Court peruses the file not to absolve the Central Government of its responsibility to file a counter but to satisfy its conscience if it notices ambiguities in the Government’s stand. If the Courts have shown indulgence by perusing the file where affidavit is not filed for good reason, let that indulgence not be misused by construing it to be a licence to dispense with the obligation to file a return.”
[5] Taking into consideration the above fact and considering the decision of the Hon'ble Apex Court in the case of Rajindra (supra), in the opinion of this Court, sufficient or cogent reasons are not given for non consideration of representation of the detenu by the Central Government and State Government. Hence, the present petition deserves to be allowed. 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 23.10.2011 passed by the authority.
[6] The petition is allowed. The impugned order of detention dated 23.10.2011 passed by the District Magistrate, Navsari against the detenu 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.
[M.D.Shah, J.]
satish