Madhya Pradesh High Court
Shakir Shah ( Age 40 Years) S/O Abdul ... vs The State Of Madhya Pradesh on 15 May, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 15 th OF MAY, 2024
WRIT PETITION No. 11568 of 2024
BETWEEN:-
SHAKIR SHAH THROUGH FARZANA BEE W/O SHAKIR
SHAH, AGED ABOUT 38 YEARS, OCCUPATION:
HOUSEWIFE 12, KHIJRABAD COLONY, KHAJRANA,
INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI DURGESH SHARMA, LEARNED COUNSEL FOR THE PETITIONER)
AND
1. THE STATE OF MADHYA PRADESH DWARA
PRAMUKH SACHIV KHADYA NAGRIK AAPOORTI
EVAM UPBHOKT SANRAKSHAN VIBHAG BHOPAL
(MADHYA PRADESH)
2. BHARAT SARKAR KHADYA, SARVJANIK VITRAN
EVAM UPBHOGTA MAMLE MANTRALAYA
(UPBHOGTA MAMLE VIBHAG) KRISHI BHAWAN,
NEW DELHI (DELHI)
3. COLLECTOR INDORE MOTI TABELA, INDORE
(MADHYA PRADESH)
4. POLICE AAYUKT INDORE, POLICE AAYUKT
KARYALAYA, INDORE (MADHYA PRADESH)
5. THANA PRABHARI POLICE THANA KHAJRANA
DIST. INDORE (MADHYA PRADESH)
.....RESPONDENTS
( SHRI BHUWAN GAUTAM - GOVT. ADVOCATE FOR THE
RESPONDENTS/STATE)
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 17-05-2024
18:23:06
2
This petition coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
ORDER
The present writ petition under Article 226 of the Constitution of India
assails the order dated 01.03.2024 passed by respondent no.3 as well as order
dated 06.04.2024 passed by respondent no. 1.
2. Brief facts of the case are that upon receipt of information from
Crime Branch Police, Khajrana regarding illegal business of Gas Refilling taking
place in Khajrana, the Jr. Supply Officer alongwith police personnel went for
investigation and found the work of illegal refilling of gas was going on. A
preliminary report was lodged by the Jr. Supply Officer at Police Station
Khajrana to the effect that who found that petitioner with the help of two more
accomplices was carrying out illegal gas refilling at his residence in Khizrabad
Colony, Khajrana wherein 28 empty domestic LPG cylinder(capacity 14.2 kg
each) and 08 Commercial Cylinders (capacity 19 kg) alongwith 08 commercial
cylinders(capacity 5 kg) and 43 filled cylinders (capacity 3 kg) were found
alongwith other machines pumps etc. on the spot. On further investigation,
petitioner admitted the fact that by using gas transfer machine left out gas from
14.2 kg capacity cylinders 03 and 05 kg capacity cylinders were refilled and 19
kg commercial cylinders were also collected from various hotels and resturants
and with the left out gas, 3 and 5 kg capacity cylinders were refilled and he is
carrying out this illegal refilling work since the last eight months. He further
informed that 14.2 kg cylinders were provided by H.P. Gas Agency at Dewas
by one Rajesh Jaiswal and the Nandkishore is the owner of the said agency at
the rate of 1100 per cylinder in black and gas was refilled in 5 and 3 kg capacity
cylinders at the rate of Rs. 100 per kg and sold out in various institutions.
Petitioner was called at the Police Station and thereafter after completing
formalities, he was released. However on 01.03.2024, petitioner was arrested
without any prior information or notice whereafter he was detained in jail.
REspondent no.1 had passed order dated 01.03.2024 against the petitioner
under sub-section (1) (2) of Section 3 of Prevention of Blackmarketing and
Maintenance of Supplies of Essential Commodities Act, 1980(referred to as the
"Act of 1980" hereinafter). Thereafter, respondent no.1 has passed the order of
detention of petitioner u/S 12(1) of the Act of 1980 for a perido of six months.
Accordingly, the present petition has been filed.
3. Learned counsel for the petitioner submitted that respondent no.3 has
not considered the provisions of Section 3(2) of the Act of 1980 while passing
the order.
4. Learned counsel for the petitioner further drawing the attention of this
Court to sub-section (1)(2) of Section 3 of the Act of 1980 submitted that there
should be some conclusive basis on which detention of a person becomes
necessary.
5. Sub-section(1) of Section 3 of the Act of 1980 is reproduced below
for convenience and ready reference:
"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 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."
6. However, the respondent no.1 without assigning any cogent reason
or basis as per Section 3 of the Act of 1980 for detention has passed a
cyclostyled order and on the basis of reason assigned, the order impugned
does not allowed to stand.
7. It is further submitted that against the order passed by respondent
no.3 u/S 3(2) of the Act of 1980, petitioner has preferred a representation dated
11.03.2023 before the respondent no. 1 and 3. On perusal of the order passed
by respondent no.1 dated 06.04.2024, it appears that the same has been passed
on the basis of opinion of Advisory Board. The representation submitted by the
petitioner was neither brought before the Advisory Board nor the same was
adverted to by the respondent no.1 while passing the order impugned. Thus, it
is crystal clear that the representation preferred by the petitioner was not
decided before passing the order of detention. As per Section 8 of the Act of
1980, without deciding the representation, passing of the order of detention is
clear violation of Article 22(5) of the Constitution.
8. To bolster his submissions, learned counsel for the petitioner has
pressed into service, the judgment passed by Apex Court in the case of Dr.
Rahmatullah Vs. State of Bihar and Another reported in AIR 1981 SC
2069. Relevant excerpts of which are reproduced below for convenience and
ready reference:
"The law is well-settled that in case of preventive detention of a
citizen, the obligation of the appropriate government is two-fold: (i) to
afford the detenu the opportunity to make a representation and to
consider the representation which may result in the release of the
detenu, and (ii) to constitute a Board and to communicate the
representation of the detenu along with other materials to the Board to
enable it to form its opinion and to obtain such opinion. The former is
distinct from the latter. As there is a two-fold obligation of the
appropriate government, so there is a two-fold right in favour of the
detenu to have his representation considered by the appropriate
government and to have the representation once again considered by
the Government in the light of the circumstances of the case considered
by the Board for the purpose of giving its opinion [see 1979(2) SCR
315(1)] and [1970 (1) SCR 543(2)]
5. In the instant case, the State Government did not discharge the
first of the two-fold obligation and waited till the receipt of the Advisory
Board's opinion. There was, as pointed out above, an unexplained
period of twenty-four days of non-consideration of the representation.
This shows there was no independent consideration of the
representation by the State Government. On the contrary they deferred
its consideration till they received the report of the Advisory Board. This
is clear non-compliance of Article 22(S) as interpreted by this Court. The
order of detention is, therefore liable to be quashed on this ground
alone."
9. He further relied upon the judgment passed by the Apex Court in the
case of K.M. Abdullah Kunhi and Another Vs. Union of India reported in
AIR 1991 SCW 362. Relevant excerpts of the same are reproduced below for
convenience and ready reference:
"It is now beyond the pale of controversy that the constitutional
right to make representation under clause (5) of Article 22 by necessary
implication guarantees the constitutional right to a proper
consideration of the representation. Secondly, the obligation of the
Government to afford to the detenu an opportunity to make
representation and to consider such representation is distinct from the
Government's obligation to refer the case of detenu along with the
representation to the Advisory Board to enable it to form its opinion and
send a report to the Government. It is implicit in clauses (4) and (5)
of Article 22 that the Government while discharging its duty to consider
the representation, cannot depend upon the views of the Board on such
representation. It has to consider the representation on its own without
being influenced by any such view of the Board. The obligation of the
Government to consider the representation is different from the
obligation of the Board to consider the representation at the time of
hearing the references. The Government considers the representation to
ascertain essentially whether the order is in conformity with the power
under the law. The Board, on the other hand, considers the
representation and the case of the detenu to examine whether there is
sufficient case for detention. The consideration by the Board is an
additional safeguard and not a substitute for consideration of the
representation by the Government. The right to have the representation
considered by the Government, is, safeguarded by cl. (5) of Article
22 and it is independent of the consideration of the detenu's case and his
representation by the Advisory Board under cl. (4) of Art. 22 read
with section 8(c) of the Act. (See: Sk. Abdul Karim & Ors. v. State of West
Bengal, [1969] 1 SCC 433; Pankaj Kumar Chakrabarty & Ors. v.
State of west Bengal, [1970] 1 SCR 543; Shayamal Chakraborty v. The
Commissioner of Police Calcutta and Anr., [1969] 2 SCC 426; B. Sundar
Rao and Ors. v. State of Orissa, [1972] 3 SCC 11; John Matrin v. State
of West Bengal, [1975] 3SCR 211; S.K. Sekawat v. State of West Bengal,
[1983] 2 SCR 161 and haradhan Saha & Anr. v. State of West Bengal
and Ors.,[1975] 1 SCR 778."
10. It is further submitted that in terms of the provisions of Section
3(4) of the Act of 1980, the State Government shall within seven days, report
the order made by the State Government alongwith entire particulars to the
Central Government. However, in case of petitioner, the order so passed has
not been reported to the Central Government. Hence, the orders impugned are
liable to be set aside.
11. On the other hand, learned counsel for the respondent/State
submitted that the order of detention was passed against the petitioner on the
basis of report submitted by the District Supply Controller, Indore. The District
Supply Controller has received information about illegal activity of refilling of
gas cylinders and black marketing of the same. A raid was conducted wherein
incriminating material was seized from the spot, on the basis of which FIR was
registered. Looking to the sensitivity of the issue and rapid increase in
blackmarketing of essential commodities, respondent no.3 has issued order of
detention after following due procedure prescribed under the law and in
exercise of powers conferred u/S 3(1)(2) of the Act of 1980 and also after
arriving at subjective satisfaction for passing of the detention order. So far as
the contention of counsel for the petitioner that order has not been served upon
him is concerned, it is pertinent to mention here that the same was duly served
upon the petitioner alongwith the ground of detention within the prescribed time
provided under the law and the respondents have forwarded the order of
detention to the State Government which was duly approved and thereafter the
same was forwarded to the Advisory Board for obtaining confirmation and
thereafter the order u/S 12 (1) of the Act of 1980 was passed for a period of six
months i.e. from 02.03.2024 to 01.09.2024.
12. As regards non-consideration of representation is concerned, it is
note worthy that opinion was sought on the representation of petitioner from
respondent no.3/Collector and after due consideration of representation as well
as report/opinion of Collector, the State has rejected the representation. Thus, it
is clear that respondents have duly followed the provisions of the Act of 1980
for conducting preventive detention proceedings. Under such circumstances,
petition filed by the petitioner is liable to be dismissed.
13. Heard, learned counsel for the parties and perused the record.
14. Subsequent to the order of detention passed by the District
Magistrate on 01.03.2024, the opinion of Advisory Board was also sought
wherein Advisory Board vide order dated 05.04.2024 opined that there are
plausible reasons in terms of the provision of Act of 1980 to detain the
petitioner. The matter was then referred to the State Government for its
approval and by order dated 06.04.2024, the State Government approved the
order of detention.
16. It is not in dispute that petitioner has preferred representation on
11.03.2024 to the Government of India, Ministry of Food, Civil Supplies and
Consumer Affairs , Principal Secretary, State Government, Food, Civil
Supplies and Consumer Protection Department, Mantralaya Bhopal as well as
District Magistrate. The representation made by the petitioner was forwarded by
the Dy. Secretary, M.P. Govt. Department of Food,Civil Supplies and
Consumer Protection to the District Magistrate for pointwise scrutiny and his
opinion as well as suggestion on the same. The District Magistrate submitted his
scrutiny report and proposal on the representation submitted by the petitioner
on 24.04.2024 and on the basis of his report, the Dy. Secretary, Department of
Food,Civil Supplies and Consumer Protection vide order dated 08.05.2024
rejected the representation of petitioner in gross violation of the Section 8 of the
Act of 1980 which stipulates that before deciding the representation, passing of
the order of detention is clear violation of Article 22(5) of the Constitution as
has been done in the present case. It is well settled position of law that without
deciding the representation, the order of detention does not hold good.
17. This Court finds support in its view by the judgment passed by the
Apex Court in the case of Sarabjeet Singh Mokha Vs. District Magistrate,
Jabalpur and others reported in 2021 SCC Online SC 1019 wherein it has
been held that non-consideration of representation of the detenu would vitiate
the orders of detention.
1 8 . The order of rejection of petitioner's representation passed by the
Dy Secretary, Deptt. of Department of Food,Civil Supplies and Consumer
Protection clearly indicates that the same was passed on 08.05.2024, i.e. after
passing of the orders of detention on 06.04.2024 and, therefore, the same
would not allowed to stand.
19. Consequently, the petition is allowed. The orders of detention dated
01.03.2024 passed by the respondent no. 3 as well as the confirmation order
dated 06.04.2024 passed by the respondent no.1 are quashed and the Jail
Superintendent is directed to release the petitioner from custody forthwith, if he
is not required in any other case. However, respondents are at liberty to take
appropriate action in accordance with law against the petitioner, in case of
further complaint regarding any illegal activity being carried out by him.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
sh
