IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3725 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ CHAUDHARY PRAVINBHAI VIRSINGBHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3725 of 2001 MS BANNA DATTA for KRISHNA U MISHRA for Petitioner No. 1 Mr. H.L. Jani 1-3. RULE SERVED BY DS for Respondent No. 2-3 MS PJ DAVAWALA for Respondent No. 4 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 19/07/2001 ORAL JUDGEMENT Heard learned advocate Ms. Banna Datta for Ms. K.U. Mishta for the petitioner and Mr. Jani, learned AGP for the respondent State and Ms. P.J. Davawala, learned Addl. Standing Counsel for respondent NO.4. In this petition, the petitioner has challenged the impugned order of detention dated 8.2.2001 passed by the District Magistrate, Mehsana under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 ("the PBM Act" for short) The grounds of detention have been communicated to the petitioner. In this petition, the respondent State has filed affidavit in reply though. Respondent NO.4 has also filed affidavit in reply. Learned advocate Mr. Banna Datta for the petitioner has raised various contentions but according to her, one contention is enough for setting aside the impugned order of detention. She has submitted that looking to the grounds of detention, the detaining authority has considered the provisions of section 7 and 12AA of the Essential Commodities Act, 1955. She has, therefore, submitted that the relevant section 12AA was not in existence when the impugned order of detention has been passed by the detaining authority. According to her, it amounts to non application of mind on the part of the detaining authority when he considered the relevant provisions of section 12AA of the Essential Commodities Act, 1955 ("the EC Act" for short) which was not in existence in the statute at the time of impugned order. She has submitted that it is total non application of mind on the part of the detaining authority in considering the aspect of taking steps u/s.12AA of the EC Act. She has submitted that section 12AA was inserted in the Statute book by amendment of 1982 in the principal Act for a period of five years initially and, thereafter, it was extended from time to time and in the year 1997, said amendment has lapsed as no extension has been given by the legislature. On this ground, she has submitted that the impugned order of detention is required to be quashed and set aside. I have considered the submissions made by the learned advocates for the parties. I have also considered the grounds of detention communicated to the petitioner wherein the detaining authority has considered this relevant provision namely section 12AA of the EC Act. Learned AGP Mr. Jani has submitted that he has not been able to give any reply to this contention because section 12AA relates to lesser drastic remedy which was not in existence at the time of passing of the impugned order of detention. Such a provision, if considered would definitely amount to non application of mind while passing the impugned order. Learned Addl. Standing Counsel Ms. P.J. Davawala has submitted that the impugned order of detention has rightly been passed by the detaining authority after taking into consideration all the facts and circumstances of the case and that the order is just, legal and proper and this court should not interfere with the same. I have considered the submissions made by the learned advocates for the parties. Looking to the grounds of detention, page 5 (internal page 21), while considering the lesser drastic remedy, the detaining authority has also considered the provisions of sec.12AA and was of the view that the action could be taken against the detenu but in view of the serious type of criminal activity of the detenu, the detaining authority was of the view that such type of proceedings would be a time consuming proceedings and if such steps are taken, then, the detenu, by getting released on bail from the court, may continue such type of criminal activity. Therefore, the detaining authority has not thought it expedient to take steps under sec.12AA of the Act but to detain the detenu under the PBM Act. It is also clear that the provisions of section 12AA were inserted in the EC Act by way of amendment in the year 1982 and has remained in force upto 1997 and, thereafter, these provisions have not continued in the Statute and, thus, at the time of passing of the impugned order of detention, such provisions were not in existence. However, same has been considered by the detaining authority. This shows total non application of mind on the part of the detaining authority and on this ground alone, the impugned order of detention is required to be quashed and set aside. For the reasons recorded hereinabove, the petition succeeds and the same is allowed. The order of detention dated 8.2.2001 is vitiated and resulted to quash and set aside. The detenu Chaudhary Pravinbhai Virsangbhai who has been detained at Central Jail, Vadodara be set at liberty forthwith if he is not required in any other case. Rule is made absolute accordingly. No order as to costs. Direct Service is Permitted. Dt.19.7.2001. (H.K. Rathod,J.) Vyas