BHERUKLAL RAMSWARUP VIRVAL v. STATE OF GUJARAT

CORAM : MR.JUSTICE C.K.BUCH Date of decision: 13/08/2002 ORAL JUDGEMENT

1.(cid:9)Heard ld. counsel Mr. Prajapati for th petitioner, ld. AGP Mr. H.H.Patel for the State and ld. Standing Counsel Ms. Davawala for Union of India.

2.(cid:9)By this petition under Article 226 of the Constitution of India, the petitioner-detenu has challenged the legality and validity of the order of detention dated 10.6.2002 passed against him by the District Magistrate, Surat in exercise of the powers conferred on him by Section 3(2) of the Prevention of Black-Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as the "PBM Act").

3.(cid:9)Bunch of papers supplied with the grounds of detention to the petitioner reveals that the sponsoring authority found that the petitioner is involved in selling petroleum product known as "solvent". That on

16.2.2002, all of a sudden House No.14 situated in Haridwarnagar Society, Village : Dindoli, Ta; Choryasi, District : Surat, caught in an accidental fire because the inflammable petroleum product namely "solvent" was illegally stored in that house. The occupant of that house namely Shri Gordhanbhai Motiji Virval, his son and his servant who were in the said house also sustained burn injuries and they were shifted to one Maskati Hospital at Surat for treatment. On that very day, house of Shri Gordhanbhai Virval as well as his business premises were inspected by the police and ultimately it was found that Shri Gordhanbhai Virval was doing business in petroleum solvent without licence and the petitioner detenu was found involved in selling, transporting and storing the petroleum solvent in a huge quantity which was ultimately recovered. To indulge in such activities without licence by itself is an offence. It is also considered by the detaining authority that in the examination of the sample sent for analysis to the laboratory, the presence of blue kerosene was also found in Sample No. 1908 and undisputedly, the petitioner is not authorised either to sell or to store blue kerosene which is available and sold only at government Fair Price Shop to the authorised card-holders. Blue kerosene is to be distributed to the card-holders as per the policy and guidelines of the State Government. Activities of the petitioner, therefore, was found prejudicial to the supply of essential commodities and ultimately, the impugned order of detention came to be passed.

4.(cid:9)This petition has been resisted by the State as well as by the Union of India. Affidavit filed on behalf of Union of India is tendered by ld. Standing Counsel Ms. Davawala is taken on record. Ld. AGP Mr. Patel has tendered two affidavits, one filed by the detaining authority and by the State Government, which are also taken on record.

5.(cid:9)The impugned order of detention has been challenged by the petitioner on number of grounds. However, Mr. Prajapati, ld. counsel appearing for the petitioner has restricted his arguments mainly on one ground. Referring to O.19(2) of The Gujarat Conditions of Detention (Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities ) Order, 1980 (hereinafter referred to as the Order of 1980), it is submitted that the representation made under Section 8 of the Act by the prisoner to the Superintendent of Jail, Superintendent of Jail is supposed to forward the same forthwith to the government. It would be beneficial to quote O.19(2) of the Order of 1980 for the purpose. "19(1)(cid:9)xxx(cid:9)xxx(cid:9)xxx(cid:9)xxx(cid:9)xxx (2)(cid:9)Where any prisoner makes a representation under Section 8 of the Act, the Superintendent shall forward it direct to the Government. Where the detaining authority is other than the Government, the Superintendent shall also forward a copy of the representation to such detaining authority and the detaining authority shall forward the same with its remarks, to the Government, with utmost expedition. (cid:9)(3)(cid:9)xxx(cid:9)xxx(cid:9)xxx(cid:9)xxx(cid:9)xxx "

6.(cid:9)In reference to the above provisions, it is submitted that brother-in-law of the detenu has sent a representation to the jail authority with a forwarding letter requesting to obtain signature of the detenu and to forward it to the concerned authorities at the earliest, if required, by taking out copies of the said representation. Said forwarding letter is dated

15.6.2002. It is not a matter of dispute that this application with representation has reached to the jail authority on 17.6.2002. However, for the reasons best known to the jail authority, the said representation was not forwarded either to the Government or to the detaining authority forthwith. Of course, in the affidavit-in-reply filed by respondent no.2, respondents have tried to clarify that number of copies of the representation were not adequate i.e. six copies and, therefore, it was not possible for the jail authority to forward the representation received on 17.6.2002. Meanwhile, the petitioner detenu had made another representation through his brother-in-law and sent on

19.6.2002. Said representation was drafted by the lawyer of the petitioner and signed by the brother-in-law of the petitioner and was dispatched on 19.6.2002. This second representation was received by the detaining authority on

25.6.2002. Stand of all the respondents is consistent that the second representation has been responded by the State Government as well as by the Central Government promptly, but the grievance of the petitioner is that his first representation has been ignored by the competent authority and especially jail authority. In the first representation, a specific demand was raised that detenu should he supplied copies of relevant papers in the language known to him i.e. in Hindi. Para-19 of the affidavit-in-reply filed by the detaining authority reads as under:- "(cid:9)With regards to the grounds of para-4 of the petition, I deny the same. I say that the contention raised in this ground, is unwarranted in as much as the petitioner himself has admitted that the petitioner is staying in the State of Gujarat since last 10 years. The petitioner had given his statement on 6.3.2002, at that time, he has not raised an objection with regard to his knowledge of Gujarati language and this ground appears to be an after-thought. "

7.(cid:9)It is argued by ld. AGP Mr. Patel that the petitioner knows Gujarati as he is staying in the Gujarat since last 10 years. If a person stays in Gujarat since long, it would not be either legal or proper to assume that he would be able to understand the document written in Gujarati language. Merely because in the statement dated 6.3.2002, this plea has not been raised, it would not debar him in admitting his infirmity or say inability to read Gujarati. It is not the say of the respondents that a pointed question was put to the detenu on 6.3.2002 as to whether he knows Gujarati and whether he is able to read the document written in Gujarati language, otherwise, reply affidavit would have taken care of this situation. Statement of retraction of the petitioner is undoubtedly in Hindi. So, the act of not forwarding the first representation received by the jail authority has resulted into serious prejudice. On careful scrutiny, this Court also finds that a lame excuse has been created and given by the detaining authority showing a letter allegedly received from the jail authority dated,

8.8.2002, otherwise respondent could have produced sufficient supporting material to the letter dated

8.8.2002 viz. proof of dispatch of this very letter to the brother-in-law of the detenu from whom jail authority had received representation and the proof of dispatch of the letters to the Collector and District Magistrate viz. detaining authority. This very letter could have been written by the jail authority immediately on 17.6.2002 or

18.6.2002. The authority cannot anticipate in advance that they are going to receive another representation. So, in action in dealing with the first representation by the jail authority has resulted into serious prejudice and the petitioner detenu was pushed to a disablement in making effective representation immediately. This has violated the guarantee enshrined in Article 22(5) of the Constitution of India and vitiates the legality and validity of the impugned order of detention.

8.(cid:9)During the course of submissions, ld. counsel Mr. Prajapati for the petitioner has pointed out that mostly in similar facts situation, the Apex Court in its decision in the case of Rattan Singh and another v/s State of Punjab & Ors., AIR 1982 SC P.1, has held that it was obligatory on the part of the jail authority to forward the representation by taking out copies if the jail authority is handed over with only one copy of the representation. Prompt response to the second representation would not validate the error committed earlier on 17.6.2002 onwards till 25.6.2002. In another decision in the case of Premlata Sharma (Smt.) v/s District Magistrate, Mathura & Others, (1998) 4 SCC P.260, the Apex Court has held that there can be more than one representations and representation can be made as long as detention continues. There should not be any delay or latches in dealing with the representation made before the detaining authority/ appropriate authority. So, in the present case, rejection of the second representation cannot be treated as valid rejection of the first representation dated 15.6.2002 only on the ground that both the representations are made by the same persons viz. brother-in-law of the detenu and that second representation was dispatched within 4 to 5 days after the first representation. So, reasons given by the detaining authority and jail authority in the letter dated 8.8.2002 for not sending or dealing with the representation are found not tenable.

9.(cid:9)In view of above settled legal position, it is not necessary to refer to other authorities cited by ld. counsel Mr. Prajapati for the petitioner, nor it is necessary to go into the merits of the other grounds raised by the petitioner in the petition challenging the legality and validity of the impugned order of detention, as on the sole ground of non-forwarding the representation promptly by the jail authority to the concerned authorities resulting into violation of the right to make effective representation enshrined under Article 22(5) of the Constitution of India, this petition requires to be allowed and impugned order of detention requires to be quashed and set aside.

10.(cid:9)For the reasons aforesaid, this petition is allowed. The impugned order of detention dated 10.6.2002 passed by the District Magistrate, Surat, is hereby quashed and set aside and detenu is hereby ordered tobe set at liberty forthwith if he is not required to be detained in any other case. Rule is made absolute. (cid:9) (cid:9)Direct service is permitted.

13.8.2002(cid:9) (cid:9)[ C.K. BUCH, J ] *rawal (cid:9) (cid:9)