Madhya Pradesh High Court
Asad Shaikh Through Nyay Mitra Mushtakh ... vs The State Of Madhya Pradesh on 31 May, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
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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 31 st OF MAY, 2024
WRIT PETITION No. 10194 of 2024
BETWEEN:-
ASAD SHAIKH THROUGH NYAY MITRA MUSHTAKH
SHAIKH S/O SHABBEER SHAIKH, AGED ABOUT 24
Y E A R S , OCCUPATION: GYM TRAINER, 05, B,
KHIJRABAD COLONY, KHAJRANA DISTRICT INDORE
(MADHYA PRADESH)
.....PETITIONER
(SHRI SHADAB KHAN, LEARNED COUNSEL FOR THE PETITIONER )
AND
1. THE STATE OF MADHYA PRADESH THROUGH
MUKHYA SCHIV KHADDH NAGRIK AAPURTI
UPBHOKTA SANRAKSHAN VIBHAG VALLABH
BHAWAN, BHOPAL DISTRICT BHOPAL (MADHYA
PRADESH)
2. JILA DANDADHIKARI / COLLECTOR MOTI
TABELA DIST. INDORE (MADHYA PRADESH)
3. THANA PRABHARI POLICE THANA KHAJRANA
DIST. INDORE (MADHYA PRADESH)
4. POLICE AYUKT KARYALAY POLICE AYUKT
INDORE (MADHYA PRADESH)
.....RESPONDENTS
( SHRI BHUWAN GAUTAM, LEARNED GOVT. ADVOCATE FOR THE
RESPONDENT/STATE)
T h is petition coming on for admission. this day, Justice Sushrut
Arvind Dharmadhikari passed the following:
ORDER
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The present writ petition under Article 226 of the Constitution of India
assails the order dated 01.03.2024(Annexure-P/4), passed by the respondent
No.2 whereby, the petitioner has been detained in pursuance to the order of
detention passed under the National Security Act, 1980.
2. The brief facts of the case are that upon receipt of the information
from the Crime Branch Police, Khajrana regarding illegal business of Gas
refilling taking place in Khajrana, the Junior 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 Junior Supply Officer at
Police Station Khajrana to the effect that the petitioner alongwith other persons
was carrying out illegal gas refilling wherein 80 cylinders of HPCL Company,
out of which 60 filled and 20 empty cylinders of HPCL Company were found.
The entire set up was also found alongwith certain instruments, refilling
machines etc. for carrying out such illegal gas refilling business. On
investigation, it was found that the business of refilling the gas cylinders were
carried out for more than six months. It was further informed that the petitioner
used to purchase the filled gas cylinders from the hawkers of the HPCL gas
agency for Rs.932/- and used to refill 19 Kg cylinders and sold it for Rs.1,450/-
to the Hotels and other establishments. The petitioner also did not possess any
exclusive license for carrying on such business. In view of the aforesaid, the
petitioner was detained on 01.03.2024 and, thereafter, arrested on 02.03.2024.
The order of detention was served on the same day. The aforesaid order was
passed by the respondent No.2 against the petitioner under Sub-section (1) (2)
of Section 3 of the Prevention of Black-marketing and Maintenance of Supplies
of Essential Commodities Act, 1980(referred to as the "Act of 1980"
hereinafter). The detention order was passed for a period of six months.
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Accordingly, being aggrieved, the petitioner has filed the present writ petition.
3. Learned counsel for the petitioner submitted that respondent no.2 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
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essential to the community;
(b) or 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 can not be
allowed to stand.
7. It is further submitted that against the order passed by respondent no.2
u/S 3(2) of the Act of 1980, petitioner has preferred a representation dated
16.03.2024 before the respondent no. 1 and 2. On perusal of the impugned
order dated 01.03.2024, 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. It is further submitted that the Collector had
sent the order to the State Government on 04.03.2024(Annexure-R/2) The
detention order was approved under Section 3(3) of the Act on
07.03.2024(Annexure-R/3) Then the record was sent to the Advisory Board to
confirm the order of 06.04.2024 whereas the representation was filed on
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16.03.2024.
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 5representation 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
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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
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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, refer the
order alongwith entire particulars to the Central Government. However, in case
of petitioner, the order so passed has not been referred 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.2 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
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thereafter the order u/S 12 (1) of the Act of 1980 was passed for a period of six
months from the date of actual detention i.e. 01.03.2024.
12. As regards non-consideration of representation is concerned, it is
note worthy to mention herein that as per the order dated 01.03.2024, the
respondent No.2 has already granted the right to the petitioner to make a
representation against the order.
13. As per Section 8 of Act of 1980, the representation is required to be
made as soon as may be, but ordinarily not later than five days and in
exceptional circumstances and for reasons to be recorded in writing, not later
than 10 days from the date of detention. The order of detention was served on
the petitioner on the same day i.e. 01.03.2024. Therefore, within five days he
ought to have filed the representation. However, the petitioner submitted the
representation on 16.03.2024 much after the approval of the Advisory Board
i.e. on 06.04.2024. Therefore, this ground would not be available to the
petitioner. Under such circumstances, the petition filed by the petitioner is liable
to dismissed.
14. Heard the learned counsel for the parties and perused the record.
15. 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 06.04.2024 under Section 12(1) of
the Act 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 07.03.2024(Annexure-R/3), the
State Government approved the order of detention as well as sent the copy of
the approval to the Central Government.
16. It is not in dispute that petitioner has preferred representation on
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16.03.2024, therefore, as per Section 8 of the Act of 1980, question of
consideration of the representation after approval Advisory Board on
06.04.2024 does not arise. Moreover, the limitation for submission of the
representation as per Section 8 of the Act was also over. In the present case,
there is no violation of Article 22(5) of the Constitution of India as the
representation was not received prior to approval from the Advisory Board,
therefore, the same would not be applicable.
17. In the present case, the respondents have not committed any
error/illegality or perversity while passing the order impugned. The respondents
have followed the procedure laid down under the Act of 1980 for passing the
detention order.
18. Consequently, the writ petition is hereby dismissed. No order as to
costs.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
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