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SCA/8143/2010 4/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8143 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
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 ?
=========================================================
ABUBAKAR
GANIBHAI MAHETAR THROUGH HARUNBHAI GANIBHAI MAH - Petitioner(s)
Versus
UNION
OF INDIA & 3 - Respondent(s)
=========================================================
Appearance
:
MR
BM MANGUKIYA for
Petitioner(s) : 1,
MR M.IQBALA SHAIKH for Respondent(s) : 1,
MS
MAITHILI MEHTA Ld. AGP for Respondent(s) : 2, 4,
RULE SERVED BY DS
for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 20/08/2010
ORAL
JUDGMENT
1. By
way of this petition, the detenu has challenged the order of District
Magistrate, Bhavnagar dated 4.4.2010 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. The
brief facts of the case are that on 27.1.2010, inspection of the
grocery shop of the detenu was carried out by the Authority and he
was found to be involved in the unauthorized activity of storing and
selling of sugar, which was purchased by the detenu from one
Anwarbhai Hajijusabbhai Sarvaiya, who is running a fair price shop,
at Shihor. Therefore, the detenu came to be detained by the Authority
vide impugned order.
3. Learned
Advocate for the detenu has invited my attention to the order of
detention dated 4.4.2010 and the grounds stated therein. Learned
Advocate has contended that there was no material before the
detaining authority except couple of statements recorded and relied
on which can be said to be sufficient material to detain the
petitioner in the commission of the offence. He has further submitted
that the detaining authority has mechanically passed the order
without proper application of mind.
3. He
has further submitted that the impugned order deserves to be quashed
and set aside. In support of his case, learned Advocate has relied
upon a decision in the case of Smt.
Shashi Agrawal v. State of U.P. reported
in A.I.R. 1988 SC 596 wherein it has been held
that before passing the order of detention, there must be credible
information or cogent reasons apparent on the record that the detenu,
if enlarged on bail, would act prejudicially to the interest of
public order.
3. Learned
Advocate has further submitted that the detaining authority has not
supplied legible copies of the documents on the basis of which the
impugned order of detention was passed. Learned Advocate has
submitted that since legible copies of the documents were not
supplied, the right of the detenu to make an effective representation
against his detention has been infringed. In support of this case,
he has relied upon a decision of this Court in the case of
Pokhrajbhai Sohanbhai Chandel v. District Magistrate,
Surat & ors. reported
in 1991 (2) G.L.R. 753
wherein it has been held that if the documents supplied to the detenu
are illegible then the right of the detenu to make effective
representation is infringed, and hence, the order of detention is
liable to be set aside.
4. Learned
A.G.P. Ms.
Mehta for the respondent State and learned Central Govt. Counsel Mr.
Shaikh for respondent Union of India have supported the order of
detention as well as the grounds stated therein and has contended
that the authority has passed the impugned order after taking into
consideration all the facts and circumstances of the case, and hence,
no case is made out calling for interference of this Court.
5. Heard
learned Advocate for the parties. On perusal of the documents on
record, it appears that, there was no material before the detaining
authority to arrive at the conclusion that the detenu was likely to
indulge into similar activities. Hence, it appears that the detaining
authority has mechanically passed the order without proper
application of mind. In view of the principle laid down in the case
of Smt. Shashi
Agrawal’s
(supra), the order passed by the detaining authority is
unsustainable in the eye of law and deserves to be quashed and set
aside on this ground itself.
6. Apart
from the above, the impugned order of detention also deserves to be
quashed and set aside on the ground that the documents supplied by
the detaining authority were illegible on account of which the
valuable right of the detenu to make an effective representation
under Article 22(5) of the Constitution has been infringed. Hence,
considering the principle laid down in the case of Pokhrajbhai
Sohanbhai Chandel’s (supra), the impugned order of
detention deserves to be quashed and set aside on this ground also.
7. In
view of the above discussion the petition is allowed. The impugned
order of detention passed by District Magistrate, Bhavnagar dated
4.4.2010 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.
(Z.K.SAIYED,J.)
mandora/
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