SCA/8267/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8267 of 2008 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 ? ========================================================= ASHOK RATILAL PARMAR - Petitioner(s) Versus DISTRICT MAGISTRATE SURENDRANAGAR. & 3 - Respondent(s) ========================================================= Appearance : MR ASHISH M DAGLI for Petitioner MR GIRISH D CHAVDA for Petitioner. Ms. Sandhya Nathani. AGP Respondents no.1,2 and 4. MR M.IQBAL A SHAIKH for Respondent no.3. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 07/08/2008 ORAL JUDGMENT 1. By way of this Special Civil Application under Article 226 of the Constitution of India, the SCA/8267/2008 2/5 JUDGMENT present petitioner has challenged the order of detention dated 28-3-2008 (Annexure 'A'), passed by the District Magistrate, Surendranagar District, in exercise of powers conferred under sub-section(2) of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (for short 'the Act') with a view to prevent the petitioner from black marketing essential commodities and acting in any manner prejudicial to the maintenance of supplies of essential commodities essential to the community. 2. The petitioner-detnu is residing in Limbdi, Surendranagar and he is a licence holder running a fair price shop in the name and style of “Pandit Dindayal” in Limbdi, Surendranagar, for the distribution of rice, wheat, sugar, kerosene etc. under the Essential Commodities Act, 1981. He was also holding permit for supply of these essential commodities for the Midday Meal Scheme at Limbdi. It is alleged that on 1-3-2008 it was found that 6000 Kgs. of wheat and 3000Kgs. of rice meant to be taken to the petitioner's fair price shop at Limbdi were being transported towards Lakhtar and the Dy.Mamlatdar along with the Panchas intercepted the vehice and seized the said commodities. It was found that the petitioner-detenu was selling these essential commodities to one Shaileshkumar at a higher price than the market price and thus for personal gains and economic profit, the detenu SCA/8267/2008 3/5 JUDGMENT had committed illegality and indulged in prejudicial activites to the maintenance of supplies of essential commodities, though it was meant to be sold to card-holders. After a thorough checking of the petitioner-detenu's fair price shop and after recording the statement of the concerned persons/witnesses, the petitioner's fair price shop was found to be indulging in black marketing. A complaint came to be lodged against the petitioner before Limbdi Police Station on 1-3-2008 bearing no.II- 3045/2008. The petitioner came to be detained. The grounds of detention are annexed at Annexure 'B' to the petition. 3. The learned Counsel for the petitioner has taken me through the grounds conveyed to the petitioner-detenu and sensitivity involved in it. I have also considered the stand taken by the respondents who have resisted the petition by filing reply affidavits. 4. It is submitted by Mr.M.Iqbal A. Shaikh, learned Central Government Standing Counsel appearing for the Union of India that the representation of the detenu was received by the department on 22-4-2008, however as some clarification was required to be called from the State Government, the delay has occurred. The learned Counsel Ms. Sandhya Nathani, ld. AGP has also conceded to this position. 5. The impugned order of detention is assailed on various grounds.Challenging the order of SCA/8267/2008 4/5 JUDGMENT detention, Mr. A.M.Dagli, learned Advocate firstly contended that the petitioner-detenu made representation dated 19-4-2008 against the impugned detention order through his Advocate which is produced at Annexure 'C' to the petition. In that representation, inter alia, the detaining authority was requested to forward the copy of the said representation to the higher authorities competent to release the detenu as mentioned in the grounds of detention, however, the said representation though received by the Department on 22-4-2008 has rejected the same as late as on 16-6-2008 and therefore there is inordinate delay in deciding the representation by the Central Government, and hence, the impugned order of detention is liable to be quashed and set aside. In support of his argument, Mr. Dagli while relying on the decision in the case of Harish Pahva v. Union of India, reported in AIR 1981 SC 1126 submitted that the Apex Court has held that the unexplained delay of a day or two also would go to the root of the order of detention or continued detention. 6. On the above ground, the Court is accepting the ratio laid down by the Apex Court and also the say of the petitioner that the authority has committed grave error in recording subjective satisfaction that the activities of the petitioner are prejudicial to the maintenance of public order. Obviously, therefore, it was SCA/8267/2008 5/5 JUDGMENT errorneous to exercise privilege vested with the authority under the Act. So without entering into the merits of other grounds, the order of detention is required to be quashed and set aside. 7. In the result, the petition is allowed. The impugned order of detention dated 28-3-2008 passed by the District Magistrate, Surendranagar, is hereby quashed and set aside and detenu is ordered to be set at liberty forthwith., if not required to be detained in any other case. Rule is made absolute. Direct service is permitted. (M.D.Shah,J.) lee.