SCA/29269/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 29269 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= NATWARLAL RATILAL KANABAR - Petitioner(s) Versus THE STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : M/S THAKKAR ASSOC. for Petitioner(s) : 1, MR AA DAVE GOVERNMENT PLEADER for Respondent(s) : 1-3 MR M.IQBAL A SHAIKH for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 13/02/2008 ORAL JUDGMENT 1.0 By way of this petition, the detenu has challenged the order of District Magistrate, SCA/29269/2007 2/7 JUDGMENT Junagadh dated 27.09.2007 passed in exercise of powers under Section 3(2) of the Prevention of Black Marketing & Maintenance of Supplies of Essential Commodities Act, 1980 (“P.B.M. Act” for short) detaining him. 2.0 The brief facts of the case are that on 11.09.2007, inspection of the premises of the detenu was carried out by the competent Authority and the detenu was found to be involved in unauthorized activity of purchase, store and sale of blue kerosene. Thereafter, the detenu came to be detained by the Authority vide impugned order. 3.0 Though the detenu has challenged the order of detention by this petition on various counts, learned advocate appearing for the detenu has restricted his arguments to the aspect of non-consideration of the representation by the Central Government only. It is submitted by the learned advocate for the detenu that the Central Government has not considered the representations forwarded by the State Government on the ground SCA/29269/2007 3/7 JUDGMENT that the original affidavit was not received by them. He further submitted that the detaining authority has not forwarded the report and the facts to the State Government and merely on assumption and presumption without considering any material on record, the detention order was passed which has rendered the continued detention illegal. 4.0 Learned AGP submitted that the representation dated 26.11.2007 made by the Advocate for the detenu addressed to the learned District Magistrate was received by the Special Branch of Food, Civil Supplies & Consumer Affairs Department on 05.12.2007. Then, file was prepared on 05.12.2007 and it was placed before the Section Officer who cleared the same on 06.12.2007. Thereupon, it was placed before the Joint Secretary who cleared the file on 07.12.2007. Thereafter, the same was placed before the Principal Secretary who rejected the said representation on 08.12.2007. Since, 09.12.2007 was a holiday, the filed was received SCA/29269/2007 4/7 JUDGMENT in the Special Branch of Food, Civil Supplies & Consumer Affairs Department on 10.12.2007 and the detenu was informed about the rejection of his representation on the same day. He further stated that at the time of passing the order of detention, they had sent the grounds of detention along with all the materials on which the detaining authority passed the order of detention to the Central Government and on the basis of those, the Central Government has to decide the representation submitted by the detenu. Therefore, it was not required to sent the affidavit while considering the representation made by the detenu which was forwarded to the Central Government. 5.0 Affidavit-in-reply is filed by Under Secretary, Department of Consumer Affairs, New Delhi. I have gone through the contents of the affidavit-in-reply. In the said affidavit, it is submitted that the first representation made on behalf of the detenu dated 23.11.2007 was received by the Central Government on 03.12.2007 SCA/29269/2007 5/7 JUDGMENT and in the concerned Section on 05.12.2007. The second representation dated 23.11.2007 was received by the Authority on 05.12.2007 and in the concerned Section on 06.12.2007. The third representation dated 23.11.2007 made by the son of the detenu was received by the Authority on 05.12.2007 and in the concerned Section on 06.12.2007. Then, the State Government was requested to furnish English version of the aforesaid representation vide telegram dated 07.12.2007. Thereupon, the State Government vide letter dated 19.12.2007 informed the Central Government that the said representation was similar to the earlier representation, the English version of which had already been sent by them vide letter dated 03.12.2007. The Central Government, thereafter, called for the factual position from the State Government vide letter dated 19.12.2007 which were received by them on 27.12.2007 and in the concerned Section 28.12.2007. The Central Government then called for the original affidavit from the State Government vide letter dated 16.01.2008. During SCA/29269/2007 6/7 JUDGMENT the time the original affidavit was awaited, the Central Government came to know about filing of the present petition by the detenu, and hence, no decision with regard to the representations made by the detenu could be taken. 6.0 It is pertinent to note that the grounds of detention were forwarded along with all the material to the Central Government, and hence, there was no reason for the Central Government to call for the original affidavit from the State Government for which no explanation is given by the Central Government. Hence, there is no substance in the arguments advanced by the standing Counsel for the Central Government that the representations could not be considered because of non-receipt of original affidavit from the State Government. 7.0 Taking into consideration the above fact, in the opinion of this Court, sufficient or cogent reasons are not given for non- SCA/29269/2007 7/7 JUDGMENT consideration of representations of the detenu by the Central Government. Hence, the present petition deserves to be allowed. 8.0 In view of the above discussion the petition is allowed. The impugned order of detention passed by the District Magistrate, Junagadh dated 27.09.2007 is hereby quashed and set aside. The detenu is ordered to be set at liberty forthwith, if he is not required in connection with any other case by the Authority. Rule is made absolute with no order as to costs. (M.D. Shah,J.) Umesh/