RASIKBHAI AMBABHAI SAKHIYA v. STATE OF GUJARAT

CORAM : MR.JUSTICE A.L.DAVE Date of decision: 13/04/2000 ORAL JUDGEMENT #. District Magistrate, Junagadh, passed an order on January 21, 2000, in exercise of powers under section 3 (2) of the Prevention of Blackmarketing & Maintenance of Supplies of Essential Commodities Act, 1980 ("PBM Act" for short), detaining the petitioner - Rasikbhai Ambabhai Sakhiya under the provisions of the PBM Act. #. Grounds of detention are as per Annexure : B produced on record on January 21, 2000. The allegations in the grounds of detention are that the detenue is involved in the activities of blackmarketing detrimental to smooth supply of essential commodities like Vanaspati Ghee and imported pamolin oil. #. The detenue has challenged the detention order on various grounds as stated in the petition. However, learned advocate Mr. Thakkar restricted his argument to the ground that there was delay on the part of the detaining authority in forwarding the representation to the State Government.

He submitted further that there was delay on the part of the Central Government in considering the representation made on behalf of the detenue. Mr. Thakkar submitted that no attempt is made on the part of the Central Government to explain the delay, if the affidavit is seen. As regards the detaining authority, Mr. Thakkar submitted that a fragile attempt is made to explain the delay in forwarding representation by the detaining authority. Mr. Thakkar submitted that the delay in considering the representation would vitiate the continued detention of the detenue and the petition may, therefore, be allowed. #. Mr. K.T. Dave, learned AGP appearing on behalf of the Stte Government and the detaining authority as also Ms. P.J. Davawala, learned Central Govt. Standing Counsel, appearing for the Union of India have opposed this petition vehemently. #. Considering the rival side contentions, if the affidavit-in-reply filed on behalf of the detaining authority is seen, it is clear that the representation made on behalf of the detenue dated February 5, 2000 was received by the Public Relation Officer of the office of the Collector on February 11, 2000.

The Registry Branch of the office of the detaining authority received the same from the Public Relation Officer on February 14, 2000 which was received by the Supply Branch on February 15, 2000 and the same was placed before the District Magistrate on February 16, 2000. Since the State Government had approved the detention on January 21, 2000, the detaining authority had become functus officio and therefore, the representation was forwarded to the Central Government on February 16, 2000 itself and the detenue was informed about the same by a communication of the even date. #. A close reading of the affidavit and the representation produced on record indicates that the representation was addressed to the District Magistrate (detaining authority). Somehow, it seems to have been received by the Public Relation Officer of the office of the Collector. It maybe noted that the office of both the District Magistrate and the Collector are manned by the same person and the infrastructure is also the same.

The Registry Branch of the District Magistrate has received that representation on 14th February, 2000 i.e. after 3 days, although the office is the same and even after the receipt on 14th February, 2000, by the Registry Branch, it is placed before the District Magistrate on 16th February, 2000. The outcome is that the representation received on February 11, 2000 came to be forwarded on February 16, 2000 and it remained idle for this period in the office of the detaining authority. Although, the first reading of the affidavit may give an impression that the delay explained, in fact, when it is closely read, it is found that it is only a fragile attempt to explain the delay which cannot be accepted. The delay in forwarding the representation would naturally result in delay in deciding the representation and therefore, would adversely affect the right of the detenue guaranteed under Article 22 (5) of the Constitution of India which would render the continued detention bad in law. #. Apart from the delay on the part of the detaining authority in forwarding the representation, there is delay on the part of the Central Government in deciding the representation.