SCA/12538/2006 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12538 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= SADIQBHAI TAIYABBHAI GORA - Petitioner(s) Versus THE STATE OF GUJARAT THE SECRETARY & 3 - Respondent(s) ========================================================= Appearance : MR MM TIRMIZI for Petitioner(s) : 1, MR IM PANDYA OVERNMENT PLEADER for Respondent(s) : 1, RULE SERVED for Respondent(s) : 1 - 2. MR PURVISH J MALKAN for Respondent(s) : 2, RULE NOT RECD BACK for Respondent(s) : 3, MR M.IQBAL A SHAIKH for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 26/09/2006 ORAL JUDGMENT 1.0 By way of this petition, the detenu has challenged the order of District Magistrate, Panchmahals-Godhra, Godhra dated 01.06.2006 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. SCA/12538/2006 2/8 JUDGMENT 2.0 The brief facts of the case are that on 29.05.2006, a raid was carried out by the Authority and the present applicant-detenu along with his partner Ismail Ahmed Bhatuk found to be involved in unauthorized activity of purchasing and storing of blue subsidized kerosene without any pass or permit. Thereafter, one offence was registered against the present applicant-detenu and his partner Ismail Ahmed Bhatuk, N.R. Parikh Agency, Godhra being C.R. No.II 218 of 2006. Thereafter, the detenu came to be detained by the Authority vide impugned order. 3.0 The detenu has challenged the order of detention by this petition under Article 226 of the Constitution on various counts. However, learned Advocate appearing for the petitioner, has restricted his arguments to the aspect of delay in consideration of the representation by the Central Government. In support of his argument, he has placed reliance on affidavit in SCA/12538/2006 3/8 JUDGMENT reply filed on behalf of the Central Government itself. He submitted that the representation was made on behalf of the detenu on 08.06.2006 which was received by the Central Government on 12.06.2006 and in the concerned Section on 13.06.2006 through Office of the Superintendent, Porbandar Special Jail vide their letter dated 08.06.2006. On receiving the said representation, the Central Government called for reports and grounds of detention on the representation made by the detenu by telegram on 13.06.2006. The reports and grounds of detention were received by the Central Government admittedly on 19.06.2006. However, the representation was rejected by competent authority of the Central Government on 23.06.2006. Learned Advocate for the applicant has submitted that an attempt is made to explain this delay in rejecting the representation made by the detenu by stating that 24th and 25th June 2006 were being Saturday and Sunday were closed holidays. However, still no explanation is given for the period between 19th June to 23rd June 2006 and, therefore, this unexplained delay has SCA/12538/2006 4/8 JUDGMENT affected the detenu’s right of making an effective representation. The continued detention is, therefore, rendered illegal and the petition may therefore be allowed. In support of his case learned Advocate for the detenu has placed reliance on a decision of the Apex Court in the case of “Rajammal Vs. State of Tamil Nadu” reported in AIR 2006 SC 684, particularly, on paras 8 and 9 of the said judgment where the Apex Court has observed as under, “8. It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation the words "as soon as may be" in @page-SC687 clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a Constitution Bench of this Court in K. M. Abdulla Kunhi and B. L. Abdul Khader v. Union of India, (1991) 1 SCC 476 : (1991 AIR SCW 362). The SCA/12538/2006 5/8 JUDGMENT following observations of the Bench can profitably be extracted here (Para 12 of AIR) : "It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal." 9. The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned.” SCA/12538/2006 6/8 JUDGMENT 4.0 On the contrary, Mr. Pandya, learned A.G.P. has supported the order of detention on behalf of the detaining authority and the State Government and Mr. Shaikh, learned Counsel for the Central Government has supported the order of detention on behalf of the Union of India. 5.0 Heard. Considering rival side contentions the only question that needs to be addressed by this Court is whether there was delay in consideration of representation on behalf of the detenu made to the Central Government. 6.0 There is no dispute about a representation dated 08.06.2006 having been made on behalf of the detenu to the Central Government. The same was received on 12.06.2006 by the Central Government and it called for reports and grounds of detention vide telegram dated 13.06.2006. The reports and grounds of SCA/12538/2006 7/8 JUDGMENT detention were received by the Central Government on 19.06.2006 and the representation came to be rejected by the Central Government on 23.06.2006 i.e. after four days. The affidavit in reply filed on behalf of the Central Government states that 24.06.2006 and 25.06.23006 being Saturday and Sunday, were closed holidays. Even if this explanation is accepted, there is no explanation coming forward from the Central Government for dates between 19th June to 23rd June, 2006 i.e. for about four days. When the Central Government had received report along with ground of detention on 19.06.2006, it was expected of the Central Government to have acted expeditiously or to have explained as to how these four days were consumed in considering the representation and, in absence of any explanation from the Central Government in this regard, it can certainly be said that there is a delay in considering the representation made by the detenu, which has adversely affected the right of the detenu of making an effective representation. Hence, in above view of the matter and in view of the decision of the Apex SCA/12538/2006 8/8 JUDGMENT Court in the case of “Rajammal Vs. State of Tamil Nadu” (Supra) the order of detention requires to be quash and set aside. The petition, therefore, requires to be allowed. 6. In view of the above discussion the petition is allowed. The impugned order of detention passed by District Magistrate, Panchmahals-Godhra, Godhra dated 01.06.2006 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. (K.S. Jhaveri,J.) Umesh/