IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3133 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE R.P.DHOLAKIA ============================================================ 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 @ ABULI ABBASBHAI SAHERWALA Versus DISTRICT MAGISTRATE, J.C.RATHOD OR HIS SUCCESSOR -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3133 of 2002 MR KV SHELAT for Petitioner No. 1 MR SJ DAVE, AGP for Respondent No. 1-2,4 MS PJ DAVAWALA for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE R.P.DHOLAKIA Date of decision: 02/05/2002 ORAL JUDGEMENT By way of this Special Civil Application under Article 226 of the Constitution of India, the petitioner has challenged the order of detention dated 1-1-2002 passed by the District Magistrate, Dahod, in exercise of powers under Section 3(2)) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. 2. I have heard learned advocate for the petitioner at length and learned AGP, Mr.S.J.Dave for the respondents. I have also perused the material on record. 3. Learned advocate for the petitioner has raised various contentions in the petition. However, at the time of arguments, he has restricted his arguments on the point of delay in deciding the representation and communicating the same to detenu. According to learned advocate for the petitioner, the detenu has submitted a representation by R.P.A.D. to the Advisory Board on 16-1-2002 and though it has been received by the authority on 17-1-2002, same has been rejected on 1-2-2002 and communication of the same has been received by the detenu on 4-2-2002. To support his contention, he has taken me through Annexure-B, page 14 which is the copy of the representation sent by the petitioner as also Annexure-C, page 17 which is the order dated 1-2-2002 sent by the authority. Mr.Shelat, learned advocate for the petitioner has relied upon the case of Harish Pahwa Vs. State of U.P. and others, AIR 1981 S.C. 1126, more particularly para 3 which runs as under: "The representation made by a detenu has to be considered without any delay. The Supreme Court does not look at equanimity upon delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital importance. It is the duty of the State to proceed to determine representations with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. Where this is not done the detention has to be declared unconstitutional." 4. In the present case, it appears that the representation dated 16-1-2002 has been received by the Advisory Board on 17-1-2002 and it has been decided on 1-2-2002 and communication has been received by the detenu on 4-2-2002 and hence, there is a delay in deciding the representation and communicating the same to the detenu. Though affidavit-in-reply has been filed on behalf of Union of India, no affidavit-in-reply has been filed on behalf of the State explaining satisfactorily the delay caused in deciding the representation. Affidavit-in-reply filed on behalf of the Union is ordered to be taken on record. 5. Learned advocate for the petitioner has made a statement at the bar that the petitioner is not interested to continue his licence. A letter to this effect is handed over by the learned advocate for the petitioner to the learned AGP who in turn has handed over the same to the concerned authority who is present in the Court. 6. Since no explanation has been putforth by the concerned authorities for not deciding the representation in time, the order of detention is illegal and the same cannot be sustained. 7. The petition is allowed. The impugned order of detention dated 1-1-2002 passed against the detenu is hereby quashed and set aside. The detenu Abuli Abbasbhai Saherwala is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly with no order as to costs. Direct service is permitted. (R.P.DHOLAKIA,J.) radhan/