Madhya Pradesh High Court
Anwar Hussain Through His Son Mohammad ... vs State Of Madhya Pradesh Though ... on 24 February, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:5117
1
W.P. No.4330 of 2025
W.P. No.3901 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 24th OF FEBRUARY, 2025
WRIT PETITION No. 4330 of 2025
ANWAR HUSSAIN THROUGH HIS SON MOHAMMAD ALTAF HUSSAIN
Versus
STATE OF MADHYA PRADESH THOUGH PNCIPAL SECRETARY AND
OTHERS
Appearance:
Shri Ravindra Singh Chhabra, learned Senior Counsel assisted by Shri Mudit
Maheshwari, learned counsel for the petitioner.
Shri Bhuwan Gautam, learned Government Advocate for the respondents /
State.
Shri Himanshu Joshi, learned Deputy Solicitor General for respondents No.3 /
Union of India.
WITH
WRIT PETITION No. 3901 of 2025
RAJESH PAHADIYA
Versus
UNION OF INDIA THROUGH PRINCIPAL SECRETARY AND OTHERS
Appearance:
Shri Mohd. Rafik Sheikh, learned counsel for the petitioner.
Shri Himanshu Joshi, learned Deputy Solicitor General for the respondent /
Union of India.
ORDER
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Per : Justice Vivek Rusia
Since the controversies involved in these petitions are
identical in nature, with the joint request of the parties, they are
finally heard and decided by this common order. Facts of W.P.
No.4330 of 2025 are being taken into consideration.
The petitioner has filed the present petition under Article 226
of the Constitution of India challenging the validity of the order dated
08.11.2024 passed by the Collector / District Magistrate under
Section 3(1)(2) of the Prevention of Black-marketing and
Maintenance of Supplies of Essential Commodities Act, 1980 (in
short 'the Act of 1980'), whereby the petitioner was directed to be
detained for a period of six months.
FACTS OF THE CASE
02. The Junior Supply Officer and other officials from the Food
Supply Department reached the warehouse situated at Mayur Bagh
Colony, Near Sai Mandir, Jawahar Tekri Road, Indore. No authorized
person was found there for one to two hours. The police were called
by them, and the lock of the warehouse was broken. The first
panchnama at 8:30 pm was drawn to that effect. By that time few
employees working in the warehouse were reached there.
2.1. The second panchnama was drawn at 10:00 pm after
conducting a search inside the warehouse. The statement of Aasif Ali
was recorded to the effect that this warehouse belongs to Rajesh
Pahadiya (petitioner in W.P. No.3901 of 2025) and the fortified rice
and wheat purchased from the beneficiaries of Public Distribution
System (PDS) are stored in this warehouse. He also disclosed that he
works for Khushi Trading Company. No bill, voucher or rent
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agreement was provided to the search team. According to the
petitioner, third panchnama was drawn at 11:35 pm and an illegible
copy of the same was provided to him.
2.2. The search team seized 152 bags of wheat (75.15 quintal) and
521 bags of rice (277.40 quintal) of total value of Rs.8,96,791/-. As
per the second panchnama, three samples of 1 - 1 kg of rice were
sealed. No samples of wheat were prepared. The Junior Supply
Officer vide letter dated 20.10.2024 sent two samples of 500 - 500
gms to the Madhya Pradesh State Supply Corporation, Indore and
District Quality Controller. The samples were tested and a report to
that effect was provided to the Junior Supply Officer vide letter dated
22.10.2024. As per the report, the rice in the samples was found
fortified rice of Public Distribution System. So far as the wheat is
concerned, it was reported that it appears to be for the Public
Distribution System, hence no definite opinion was given.
2.3. On the basis of said search and enquiry, an FIR was registered
under Section 3/7 of the Essential Commodities Act, 1955 against (i)
Rajesh Pahadiya, (ii) Anwar Hussain and (iii) Asif Ali on the
complaint of Junior Supply Officer.
2.4. The District Supply Officer vide letter dated 28.10.2024
requested the District Magistrate, Indore for initiation of detention
proceedings under the Act of 1980 against Rajesh Pahadiya, Anwar
Hussain and Asif Ali. On the basis of the aforesaid order, vide order
dated 08.11.2024, the District Magistrate passed an order of detention
for a period of six months in exercise of power conferred under
Section 3(1)(2) of the Act of 1980.
2.5. After receipt of the detention order and grounds of detention,
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the petitioner sent a representation dated 22.01.2025 to the Collector,
State Government and Central Government. The State Government
received the representation on 24.01.2025, the Collector received the
representation on 23.01.2025 and the Central Government received
the representation on 27.01.2025. Thereafter, the present writ petition
has been filed.
03. Vide order dated 05.02.2025, Government Advocate was
directed to file a reply within three working days. On 10.02.2025, the
State Government sought further time and three days was granted to
file a reply positively. On 17.02.2025, again this writ petition came
up for hearing, but no reply was filed. The OIC was directed to
remain present at 2:30 pm and the Home Secretary was directed to
remain present before this Court through Video Conferencing. At
2:30 pm, the OIC was present, but he failed to give a valid
explanation for the non-filing of the reply. However, the Home
Secretary was not present through V.C. On 18.02.2025, it was
informed that another writ petition had been filed by Rajesh Pahadiya
and the Government Advocate undertook to file a reply in the said
writ petition also. Now along with the reply, the State Government
has filed a copy of order dated 17.02.2025, whereby the State
Government rejected the representation. However, the Central
Government neither decided the representation nor filed any reply.
04. Meanwhile, the State Government filed a charge-sheet against
the petitioner under Sections 318(4), 336(3) & 340 of the Bhartiya
Nyaya Sanhita, 2023 (corresponding to Sections 420, 468 & 471 of
the Indian Penal Code). The bail application of the petitioner has
been rejected by the learned Trial Court.
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SUBMISSIONS OF THE PARTIES
05. Shri R.S. Chhabra, learned Senior Counsel appearing for the
petitioner submitted that the factum of addition of this non-bailable
offence in the FIR was not brought to the knowledge of the detaining
authority, otherwise the order of detention would not have been
passed. There is no explanation with respect to the delay of 24 days
in considering the representation of the petitioner by the State of M.P.
and after the filing of this petition, representation has been rejected in
a hasty manner without application of mind.
5.1. Learned Senior Counsel further submitted that three samples
of 1 - 1 kg of rice were taken, but the Junior Supply Officer sent only
two samples of 500 - 500 kg and no explanation to that effect has
been given in the reply which means that the samples, which were
taken in petitioner's presence from the warehouse were not sent to the
Madhya Pradesh State Supply Corporation for testing. It is further
submitted that there is an allegation against the petitioner that he
procured the fortified wheat and rice from the beneficiaries of the
Public Distribution System. If that be so, then no case is made out
against him because after the distribution of fortified rice and wheat
to the beneficiaries, they are free either to consume the same or sale
in the market, hence, same is out of the purview of the Public
Distribution System. The petitioner cannot be prosecuted or detained
for storage of fortified rice and wheat in these circumstances.
5.3. In support of these contention, Shri Chhabra, learned Senior
Counsel has placed reliance upon various judgments delivered by the
Apex Court in the cases of Ranbir Singh v/s T. George Joseph,
District Magistrate, Meerut reported in (1990) Supp SCC 54, Prof.
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Khaidem Ibocha Singh v/s State of Manipur reported in (1972) 2
SCC 576, Durga Shaw & Others reported in (1970) 3 SCC 696,
Pavitra N Rana v/s Union of India reported in (1980) 2 SCC 338,
Sarabjeet Singh Mokha v/s District Magistrate, Jabalpur reported
in (2021) 20 SCC 98, Rama Dhondu Borade v/s V.K. Saraf,
Commissioner of Police reported in (1989) 3 SCC 17, Ashadevi v/s
K. Shivraj, Additional Chief Secretary. to the Government of
Gujarat reported in (1979) 1 SCC 22, Ahamed Nassar v/s State of
Tamil Nadu reported in (1999) 8 SCC 47, State of Manipur v/s
Buyamayum Abdul Hanan reported in 2022 SCC OnLine SC 1455,
Ameena Begum v/s State of Telangana reported in (2023) 9 SCC
587 and Raziya Umar Bakshi v/s Union of India reported in 1980
Supp SCC 195.
06. Learned counsel appearing for the petitioner in W.P. No.3901 of
2024, in addition to aforesaid arguments submits that there is a violation
of Sections 4, 5 & 8 of the Act of 1980. No documents or grounds of
detention have been supplied to this petitioner in order to submit the
effective reply.
07. Learned Government Advocate for the respondents / State has
argued in support of the impugned order of detention and sought for
dismissal of the writ petition.
APPRECIATION & CONCLUSION
08. The petitioner applied for bail before the trial Court and the
same has been rejected on merit. The petitioner is not supposed to
disclose his defence in this petition, hence, he is permitted to reserve the
right to disclose same in the trial. Any opinion and findings given by us
here in this order shall not be used against any of the parties before the
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trial Court.
09. The petitioner is challenging the order of detention on technical
grounds. It is evident from the second panchnama prepared at 10:00 pm
that three samples of 1 - 1 kg were drawn, and all were seized in the
presence of the witnesses. Along with the letter dated 20.10.2024 two
samples of 500 - 500 gms were sent and there is no explanation by the
respondents in the reply as to how three samples of 1-1 kg have been
changed to two samples of 500 - 500 gm. Therefore, this creates doubts
that the samples of the rice which were taken from the warehouse were
sent to the laboratory for test and the report of changed rice and wheat
was found to be fortified. The impugned detention order based on these
test reports cannot be upheld.
10. After the passing the detention order under Section 3 of the Act
of 1980, the authority making the order shall as soon as may be, but not
later than five days; or in exceptional circumstances not later than ten
days from the date of detention communicate the grounds on which the
order has been passed shall supply to the detenu in order to afford him
earliest opportunity of representation to the appropriate Government.
11. Section 10 of the Act of 1980 mandates that in every case,
where a detention has been made under this Act, the appropriate
Government shall, within three weeks from the date of detention of a
person under the order, place before the Advisory Board constituted by
it under Section 9. Nothing is mentioned in the return as to whether the
case of the petitioners was placed before the Advisory Board within
three weeks. Only in the order dated 17.02.2025 filed along with the
reply of the State, it is mentioned that the order of detention was
approved by the State Government on 08.11.2024 and sent to the
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Advisory Board on 21.11.2024. It is also mentioned that on 28.12.2024,
the Advisory Board granted the approval, and thereafter, the
representation was rejected. Neither any document has been filed, nor
the original file is produced before this Court to confirm these dates.
12. Under sub-section (3) of Section 3 of the Act of 1980, no order
shall remain in force for more than twelve days after making thereof
unless in the meantime it has been approved by the State Government.
In this case, the order of detention dated 08.11.2024 was not approved
by the State of M.P. within a period of 12 days. No document has been
filed to show that the order dated 08.11.2024 has been approved by the
State Government, it was only sent on 21.11.2024 to the Advisory
Board. There is no approval by the State Government within 12 days as
per sub-section (3) of Section 3 of the Act of 1980. The order of
approval has not been filed in the return, no date has been mentioned in
the order dated 17.02.2025 about the approval by the Government. It is
to be noted that the original file about the detention order has not been
produced before this Court for perusal, therefore, we have no reason to
believe the State Government that the order of detention dated
08.11.2024 has not been approved by the State Government within
twelve days and after twelve days, hence, the order lost its effect after
12 days from the date of its passing. The further proceedings before the
Advisory Board and the confirmation order dated 17.02.2025 were held
after the expiry of the detention order and have no meaning.
13. Even if it is believed that the order of detention has been
approved by the State Government, the delay in rejecting the
representation on 17.02.2025 i.e. after more than three months remained
unexplained in the reply. In the case of Prof. Khaidem Ibocha Singh
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(supra), due to the unexplained delay of 17 days in deciding the
representation, the Apex Court has declared the order of detention
illegal and directed to release of the detenu. In the case of Durga
Show (supra), the delay of 16 days in deciding the representation has
been declared illegal and set aside by the Apex Court. Recently, in the
case of Sarabjeet Singh Mokha (supra), the Apex Court has set aside
the order of detention on the grounds of delay in deciding the
representation.
14. Therefore, we have hesitation in holding that post-operative
care has not been taken properly after passing the detention order to
keep the detention order alive by the competent authority.
15. We are also not happy, with the way the State Government
took time to file the reply. The writ petition in the nature of habeas
corpus challenging the order of detention is liable to be decided
within seven days as the petitioner is kept under detention without
trial by suspending his fundamental rights. Even after granting
several opportunities, a very vague reply has been filed without
necessary documents, dates and events and the original record of the
proceedings undertaken by the detaining authority has not been
produced before this Court.
16. In view of the foregoing discussion, the impugned order of
detention dated 08.11.2024 passed by respondent No.2 / District
Magistrate in both the writ petition is hereby quashed. Petitioners -
Anwar Hussain & Rajesh Pahadiya shall not be treated under
detention under the Act of 1980 forthwith.
17. Both the Writ Petitions stand allowed with the cost of
Rs.20,000 - 20,000/- payable to the petitioners by the Government of
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Madhya Pradesh.
Let a copy of this order be kept in the connected petition also.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
Ravi
