Gujarat High Court
Natvarsinh Kesarisinh Parmar Through ... vs District Magistrate , Ahmedabad on 28 June, 2024
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6061 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NATVARSINH KESARISINH PARMAR THROUGH HIS WIFE
RAJESHWARIBEN NATVARSINH PARMAR
Versus
DISTRICT MAGISTRATE , AHMEDABAD & ORS.
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Appearance:
MR MAHARSHI PATEL FOR HL PATEL ADVOCATES(2034) for the
Petitioner
MS SHRUTI PATHAK AGP for the Respondent(s) No. 2
RULE SERVED BY DS for the Respondent(s) No. 1,3,4
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 28/06/2024
ORAL JUDGMENT
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(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. By this petition under Article 226 of the Constitution
of India, petitioner - Parmar Natvarsinh Kesarisinh, has
challenged the order dated 11.03.2024 passed by the
respondent - District Magistrate, Ahmedabad directing
him to be detained under the provisions of the
Prevention of the Black Marketing and Maintenance of
Supplies of Essential Commodities Act, 1980
(hereinafter referred to as "the PBM Act of 1980" for
short).
2. The said order has been passed in purported exercise
of powers conferred by sub-section (1) read with sub-
clause (b) of sub-section (2) of Section 3 of the said
Act.
3. Brief facts giving rise to file the petition are that, the
applicant detenue Parmar Natvarsinh was granted
license with effect from 28.06.2006 for the purpose of
running fair price shop at Bareja, Tal.: Dascroi, Dist.:
Ahmedabad. The team comprising of the officers from
the Food and Civil Supplied had visited and carried out
inspection at the shop of the applicant on 30.09.2023.
They noticed serious illegalities and irregularities in
the stock of food grains like wheat, rice, salt etc.
During the course of inspection it was further noticed
that there was huge difference of the stock of food
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grains found in the software provided by the
government and physical stock at the shop. The
particulars of distribution of the food grains to the
ration card holders are found to be false and bogus
and the persons who were shown as beneficiaries did
not receive the food grains and all the persons who
were shown as beneficiaries are bogus. The modus-
operandi of the applicant was that by showing false
and bogus names of beneficiaries, the stocks of the
food grains being shown as sold but in reality, it was
not distributed at the end users and was stored at the
shop for its black marketing for the personal gain.
Thus, the authority found that, the act of the applicant
was in violation of the provision of the Essential
Commodities Act and the controlled order. The
authority had lodged the FIR on 02.10.2023 against
the applicant under the provisions of the Essential
Commodities Act. After due in-depth inquiry, the
material to this effect was put before the District
Magistrate, Ahmedabad for passing a detention order.
The authority after considering the material supplied
by the sponsoring authority came to the conclusion
that the activities of the applicant was actively
involved in black marketing of the controlled food
grains and despite of offence registered against him,
there is all possibility that he will continue this
activities even after he is released by the Court and
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therefore, with a view to prevent him from acting in
any manner prejudicial to the maintenance of supplies
to the commodities essential to the community, the
detention of the applicant under the aforesaid act is
necessary so as to protect the interest of the society
at large.
4. In the aforesaid set of circumstances, by exercising
powers under Section 3(1) of the PBM Act of 1980, the
District Magistrate, Ahmedabad passed detention
order dated 11.03.2024 and the same was executed
upon the applicant.
5. The applicant made a representation to the State as
well as Central Government on 22.03.2024 and same
was decided by the State on 08.04.2024.
6. The present petition challenging the detention order
has been preferred thereafter on 01.04.2024.
7. We have heard learned counsel Mr. Maharshi Patel
for M/s. H.L. Patel Advocates for the applicant and Ms.
Shruti Pathak, learned AGP for the respondent -
State.
8. Mr. Patel, learned counsel appearing for and on
behalf of the applicant detenue, made the following
submissions:
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(A) That there is a delay in passing the order of
detention, which is evident from the order of the
detention itself as the same was passed on
11.03.2024, whereas the FIR under the provisions
of the Essential Commodities Act was registered
against the applicant and others on 21.10.2023.
That in absence of any complaint in the
interregnum, the conclusion of the detaining
authority that it was necessary to detain the
applicant with a view to preventing him from
acting in a manner prejudicial to the maintenance
to the supplies of the commodities essential to the
community has no rationality and there is no
material placed before the authority to show that
applicant would indulge in future in such kind of
activities and therefore, while passing the order,
the authority did not apply its mind and in a
mechanical manner, without any material, the
order was passed.
(B) That the grounds for detention has no nexus with
the expression "acting in any manner prejudicial
to the maintenance of supplies of commodities
essential to the community" as explained under
Section 3 of Act of PBM 1980 and therefore, where
the offence is registered under the Essential
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Commodities Act and till date the police has not
arrested the applicant and considering solitary
offence registered against the applicant, the
alleged act would not fall the expression 'acting in
any manner prejudicial to the maintenance of
supplies to the communities essential to the
community' as explained under Section 3 of the
Act, 1980.
(C) That there was a delay in disposal of
representation made to the Central Government
as well as State Government. The written
representation was made on 22.03.2024 and
same was decided on 08.04.2024 by the State.
Thus, it is evident that there is no explanation for
the delay in consideration of representation; that
a representation of detenue whose liberty is in
peril, should be considered and disposed of as
expeditiously as possible and if any delay on the
part of the Government, then it should be properly
explained, otherwise the time gape of undue delay
would be considered as a fatal because it is a
constitutional obligation of the Government to
consider the representation forwarded by the
detenue without any delay.
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9. In view of the aforementioned submissions, learned
counsel Mr. Patel, would submit that, the detention
order is passed to punish the applicant herein and in
absence of any material, the subjective satisfaction
arrived by the detaining authority would establish that
the order impugned has been passed in a mechanical
manner and same is required to be quashed and set
aside.
10. On the other hand, opposing the application, learned
State Counsel Ms. Pathak, reiterating the contents of
the affidavit, has contended that, the applicant being
an owner of fair price shop, by showing bogus
purchaser, uploaded false data of the stocks, with
intention to sale the controlled food grains in the open
market for his personal gains. Thus, the act of the
applicant would affect the entire society and therefore,
the offence under the provisions of the Essential
Commodities Act has been registered. In such set of
circumstances, the authority has rightly exercised its
power under Section 3 so as to prevent the applicant
to defeat the provision of the Act and therefore, there
was sufficient material before the detaining authority
that after registration of the offence, he would further
indulge in the same activities and based on sufficient
material, this subjective satisfaction was arrived by the
authority. She would further urge that the
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representation dated 22.03.2024 was decided in a
reasonable time and the time of one month taken in
deciding the representation, would certainly a
reasonable period and therefore, the plea raised
herein that there is a delay in deciding the
representation, do not have any merits. So far as
provisions of Section 3(3) and 3(4) are concerned, she
would urge that, in a stipulated period, the report to
the state government as well as central government
together with the grounds and material supplied to the
detenue having been sent and accordingly the
confirmation by the State Government was also
accorded and therefore, in absence of any breach of
any mandatory provision of Act PBM 1980, the
application deserves to be dismissed.
11. Having regard to the facts and circumstances of the
present case, the issue falls for our consideration is as
to whether the order of detention passed by the
District Magistrate, Sabarkantha in exercise of his
power under the provisions of the PBM Act, 1980 is
sustainable in law?
12. Before adverting to the submissions, we may refer to
Section 3 of the Act, which authorized the authority to
pass an order of detention. Section 3 reads as under:
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3. Power to make orders detaining certain
persons.-- (1) The Central Government or a State
Government or any officer of the Central Government,
not below the rank of a Joint Secretary to that
Government specially empowered for the purposes of
this section by that Government, or any officer of a
State Government, not below the rank of a Secretary
to that Government specially empowered for the
purposes of this section by that Government, may, if
satisfied, with respect to any person that with a view
to preventing him from acting in any manner
prejudicial to the maintenance of supplies of the
commodities essential to the community it is
necessary so to do, make an order directing that such
person be detained.
Explanation.--For the purposes of this sub-section, the
expression "acting in any manner prejudicial to the
maintenance of supplies of commodities essential to
the community" means-
(a) committing or instigating any person to commit
any offence punishable under the Essential
Commodities Act, 1955 (10 of 1955) or under any
other law for the time being in force relating to the
control of the production, supply or distribution of, or
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trade and commerce in, any commodity essential to
the community; or
(b) dealing in any commodity--
(i) which is an essential commodity as defined in the
Essential Commodities Act, 1955 (10 of 1955), or
(ii) with respect to which provisions have been made
in any such other law as is referred to in clause (a),
with a view to making gain in any manner which may
directly or indirectly defeat or tend to defeat the
provisions of that Act or other law aforesaid.
(2) Any of the following officers, namely:--
(a) district magistrates;
(b) Commissioners of Police, wherever they have
been appointed,
may also if satisfied as provided in sub-section (1),
exercise the powers conferred by the said sub-
section.
(3) When any order is made under this section by an
officer mentioned in sub-section (2) he shall forthwith
report the fact to the State Government to which he
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is subordinate together with the grounds on which
the order has been made and such other particulars
as in his opinion have a bearing on the matter, and
no such order shall remain in force for more than
twelve days after the making thereof unless in the
meantime it has been approved by the State
Government:
Provided that where under section 8 the grounds of
detention are communicated by the authority making
the order after five days but not later than ten days
from the date of detention, this sub-section shall
apply subject to the modification that for the words
"twelve days", the words "fifteen days" shall be
substituted.
(4) When any order is made or approved by the State
Government under this section or when any order is
made under this section by an officer of the State
Government not below the rank of Secretary to that
Government specially empowered under sub-section
(1) the State Government shall, within seven days,
report the fact to the Central Government together
with the grounds on which the order has been made
and such other particulars as, in the opinion of the
State Government, have a bearing on the necessity
for the order.
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13. In light of the statutory provision and considering the
grounds for detention, we may first examine the issue
with regard to delay in disposal of the representation
by the Central Government. It has been strenuously
contended that the delay in deciding the
representation would indirectly breach of the mandate
of Article 22(5) of the Constitution of India. On the
other hand, learned AGP Ms. Pathak has contended
that there is no time limit to consider the
representation. It is settled legal position of law that
there is no inflexible rule regarding the time available
to the Government to consider the representation.
However, the authority is bound to consider the
representation submitted at the earliest and in case of
delay, there must be explanation to justify the delay
so as to avoid the interference of the constitutional
courts. The Supreme Court time and again in its
various pronouncements observed and held that, in
considering the representation, the diligence of very
high degree is expected from the authorities in cases
of preventive detention as it involved curtailment of
some of the most constitutional guarantees and
therefore, utmost expedition is essential in handling
the representation submitted by the detenue invoking
their constitutional right under Article 22(5). Lethargy,
lapses, negligence, delay, callousness etc. on the part
of the concerned authorities in dealing with the
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representation shall be viewed seriously and definitely
result in interference by the constitutional court for
breach of the mandate of Article 22(5) of the
Constitution of India. Reference can be made of the
case of K.M. Abdulla Kunhi Vs. Union of India,
1991 (1) SCC 476, wherein, the observations of the
constitutional bench, made following observations :
"It is a constitutional mandate commanding the
concerned authority to whom the detenu
submits his representation to consider the
representation and dispose of the same as
expeditiously as possible. The words "as soon as
may be" occurring in clause (5) of of Article 22
reflects the concern of the Framers that the
representation should be expeditiously
considered and disposed of with a sense of
urgency without an avoidable delay. However,
there can be no hard and fast rule in this regard
it depends upon the facts and circumstances of
each case. There is no period prescribed either
under the Constitution or under the concerned
detention law, within which the representation
should be dealt with. The requirement however,
is that there should not be supine indifference
slackness or callous attitude in considering the
representation. Any unexplained delay in the
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disposal of representation would be a breach of
the constitutional imperative and it would
render the continued detention impermissible
and illegal."
14. In light of the settled position of law in respect of
delay in deciding the representation and considering
the peculiar facts of the present case, we are of the
considered view that, in the facts of the present case,
the one month time taken by the authority in deciding
the representation is fatal, as there is no explanation
by the authority for the time taken in deciding the
representation. If proper explanation would have
offered, this Court could have certainly consider
whether the delay occasioned due to permissible
reasons or unavoidable causes. In such circumstances,
we are of the firm view that, the delay in deciding the
representation, would render the detention invalid as
being violative of constitutional obligation enshrined
under Article 22(5) of the Constitution of India.
15. The second contention raised is that, there was a
delay in passing the detention order and same vitiates
the detention itself. In the facts of the present case,
the authority noticed the irregularities in the stock of
the food grains in the month 30.09.2023. The FIR
under the Essential Commodities Act came to be
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lodged on 02.10.2023. The order impugned came to
be passed on 11.03.2024. In the aforesaid admitted
facts, it is evident that since 02.10.2023, the
authorities were knowing the alleged mal-practise as
well as antisocial activities affecting the supply of the
commodities. However, the respondent authority did
not have initiated any proceedings under the
preventive detention law and waited for about 155
days. In short, we found that, there is a gap of 5
months in passing the detention order. On the issue of
delay in passing the detention order, the Supreme
Court in case of Saeed Zakirhussain Malik Vs.
State of Maharashtra (2012) 8 SCC 223, held that,
prompt action in such matter should be taken as soon
as the incident as mentioned in the FIR as well as
referred in the grounds for detention have taken
place. Relevant para-27 reads as under:
"As regards the second contention, as rightly
pointed out by learned counsel for the
appellant, the delay in passing the detention
order, namely, after 15 months vitiates the
detention itself. The question whether the
prejudicial activities of a person necessitating to
pass an order of detention is proximate to the
time when the order is made or the live-link
between the prejudicial activities and the
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purpose of detention is snapped depends on the
facts and circumstances of each case. Though
there is no hard and fast rule and no exhaustive
guidelines can be laid down in that behalf,
however, when there is undue and long delay
between the prejudicial activities and the
passing of detention order, it is incumbent on
the part of the court to scrutinize whether the
Detaining Authority has satisfactorily examined
such a delay and afforded a reasonable and
acceptable explanation as to why such a delay
has occasioned"
16. We take the notice of the admitted fact that during
the gap of three months time, no any fresh complaint
being registered against the applicant. In absence of
any complaint or other materials, the conclusion of the
detaining authority that it was necessary to detain the
applicant with a view to preventing him from acting in
a manner prejudicial to the maintenance of supplies of
the commodities essential to the community has no
rationality and the subjective satisfaction being
arrived without any material. In such set of
circumstances, we are of the view that considering the
undue delay of 05 months between the prejudicial
activities and passing of the detention order, the
detaining authority failed to examine such delay and
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did not assign any reasons or explanation as to why
such delay has occasioned.
17. In view of the aforesaid discussions, we came to the
conclusion that the impugned detention order has
been rendered illegal for two reasons i.e. (i) there was
a delay in passing detention order and (ii) there was
unexplained delay in deciding the representation of
the applicant detenue.
18. In light of the above discussions, we have no
hesitation in quashing the order of detention on the
ground as discussed above, as the detention order has
become illegal for violation of Article 22(5) of the
Constitution of India and accordingly, the order of
detention dated 11.03.2024 is hereby quashed. We
direct the detenue to be set at liberty forthwith, if he
is not required in any other case. Rule is made
absolute accordingly. Direct service permitted.
(ILESH J. VORA,J)
(VIMAL K. VYAS, J)
P.S. JOSHI
