SCA/22750/2005 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 22750 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.MEHTA ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== SHAILESHBHAI DHANSUKHBHAI KOLI - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ============================================================== Appearance : MR JM BUDDHBHATTI for Petitioner(s) : 1 MR LR POOJARI, AGP for Respondents No.1-3 M IA SHAIKH for Respondent(s) : 4, ================================================================== CORAM : HONOURABLE MR.JUSTICE K.M.MEHTA Date : 02/02/2006 ORAL JUDGMENT 1. Shaileshbhai Dhansukhbhai Koli, petitioner, has filed this petition under Article 226 of the Constitution of India with a prayer that this Court may issue a writ of habeas corpus or any other appropriate SCA/22750/2005 2/6 JUDGMENT writ, order or direction, for quashing and setting aside the order of detention dated 12.9.2005, passed by the District Magistrate, Surendranagar - respondent No.2 detaining authority under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as “PBM Act”) as being illegal, invalid, null and void, suffers from total non-application of mind and violative of Articles 14, 21 and 22 of the Constitution of India. The petition was filed on 23rd November, 2005. 2. When the matter was placed for hearing before this Court on 25.11.2005 this Court has issued Rule and the same was made returnable on 14.12.2005. 3. Mr.L.R.Poojari, learned AGP appears on behalf of the respondents No.1 to 3 and Mr.M.I.A.Shaikh, learned Standing Counsel appears on behalf of Union of India. 4. Though there are several grounds Mr.Pandya, learned advocate on behalf of Mr.J.M.Budhbhatti, learned advocate for the petitioner desires to rely upon only one ground i.e. Para 4(i) that the petitioner has made representation to the respondent No.4 on 6.10.2005 and SCA/22750/2005 3/6 JUDGMENT the same has been considered by the respondent on 24.10.2005 and same has been communicated on 29.10.2005. Thus there is a delay in considering the representation as well as communication in this behalf. Mr.Pandya, learned advocate for the petitioner states that the order of detention is liable to quashed and set aside in view of the judgment of Hon'ble Supreme Court in the case of Rajammal Vs. State of Tamil Nadu and another reported in AIR 1999 SC 684 where the Hon'ble Supreme Court has held that if there is an unexplained delay of five days in considering and disposing detenu's representation, the detention is vitiated. The Hon'ble Apex Court has observed that mere absence of Minister at Headquarters is not sufficient to justify delay. 5. The State Government has filed affidavit of Shri H.C.Kadia, Deputy Secretary dated 24.1.2006 in which it was stated that the order of detention was passed on 12.9.2005 and the petitioner was actually detained on 14.9.2005 and the said order was approved by the State Government on 21.9.2005 and the State Government has reported the facts to the Central Government together with the grounds and other relevant papers by Speed Post letter dated 22.9.2005. It has also been stated SCA/22750/2005 4/6 JUDGMENT that the representation which was received by the State Government was considered and was duly rejected and the same was communicated to the petitioner/detenu accordingly. It has been stated that the representation dated 6.10.2005 was made by the detenu which addressed to all concerned authority through jail authority. It was stated that the jail authority has forwarded the said representation alongwith their letter dated 6.10.2005 to the State Government, Central Government as well as detaining authority. It was further stated that the said representation was received by the Food, Civil Supplies & Consumer Affairs Department on 7.10.2005. It was further stated that on 8.10.2005 and 9.10.2005 were Government holidays. Thereafter the file was prepared by the Special Branch on the same day i.e., on 10.10.2005. Thereafter the file was placed before the Section Officer, who cleared the said file on 10.10.2005. Thereafter the said file was placed before the Deputy Secretary and the Principal Secretary on 11.10.2005. Both the above officers cleared the said file of representation on the same day i.e., on 11.10.2005. Thereafter the said file was placed before the Hon'ble Minister of Civil Supplies on 11.10.2005 who decided to reject the representation on the same day i.e., on 11.10.2005 and as the file received back SCA/22750/2005 5/6 JUDGMENT on 13.10.2005, the detenu was informed about the rejection of the representation by a letter dated 13.10.2005 through jail authority. 6. As regards Central Government affidavit is concerned, it has been stated that the Central Government has filed affidavit of Shri A.K.Ganguly in which he has stated that the representation dated 6.10.2005 made by the detenu was received in the Central Government on 10.10.2005 through office of the Superintendent, Vadodara Central Prison, Vadodara vide their letter dated 6.10.2005. After considering the representation alongwith reports and grounds of detention and other relevant records of the case, the same was rejected by the competent authority in the Central Government on 24.10.2005 (11.10.2005, 12.10.2005, 15.10.2005, 16.10.2005, 22.10.2005 and 23.10.2005 were closed holidays) and the decision of the Central Government was conveyed to petitioner on 24.10.2005. 7. In view of the judgment of Hon'ble Supreme Court in the case of Rajammal Vs. State of Tamil Nadu and another reported in AIR 1999 SC 684, the Central Government has not been able to show that the file was SCA/22750/2005 6/6 JUDGMENT cleared immediately and there is delay about 14 days in considering the representation from 10.10.2004 to 24.10.2004. In view of the same, the petition is required to be allowed in this behalf. 8. For the reasons stated in the judgment, the petition is allowed. The impugned order dated 12.9.2005 passed by the respondent No.2 authority is quashed and set aside. The detenu – Shaileshbhai Dhansukuhbhai Koli is ordered to be set at liberty forthwith unless required in any other case. Rule is made absolute. Direct service is permitted. ( K.M. Mehta, J. ) syed/