Ilesh J. Vora, J
1. By this petition under Article 226 of the Constitution of India, petitioner â€" Lakhman Bhikhubhai Karavadra, has challenged the order dated
07.02.2024 passed by the respondent â€" District Magistrate, Porbandar directing him to be detained under the provisions of the Prevention of the
Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as “the PBM Act of 1980†for short).
2. The said order has been passed in purported exercise of powers conferred by sub-section (1) read with sub-clause (b) of sub-section (2) of Section
3 of the said Act.
3. Brief facts giving rise to file the petition are that, the State as well as Union Government introduced various schemes for Distribution of Essential
commodities like wheat, rice etc.. In order to implement the scheme for distribution of essential commodities, the Public Distribution System
(“PDS†for short) as well as through fair price shops, the huge quantity of the essential commodities had been stored in a different godowns under
the jurisdiction of Porbandar District. The employee of State Government as well as the persons, who were involved in the PDS System as well as
Logistic Work, conspired to misappropriate the huge amount of food-grains for their personal gains. It is alleged that during 01.01.2020 to 04.01.2023,
the applicant and others in all 13 persons defrauded the Government by misappropriating the huge quantity of food-grains stored in the Government
godowns under the jurisdiction of Porbandar District. It was noticed that by manipulating stock registered as well as by making forged gate-passes, the
huge stocks of food-grains worth Rs.99,77,551/- being misappropriated by committing the act of forgery and criminal breach of trust. The Government
had awarded the contract for door step delivery to one Hathiyabhai Khuti. The said Hathiyabhai, without any authority awarded sub-contract to the
applicant herein. The applicant being father of sub-contractor Rahul, was part of the said conspiracy and sold the stock of essential commodities to the
third party namely Hasubhai and Paras Sachdeva in open market and obtained huge profit and causes loss to the Government Exchequers, whereby,
committed an offence under the provisions of the Essential Commodities Act, 1955 and under the Penal Laws. After in depth inquiry made by the
State Government, the FIR came to be lodged with Ranavav Police Station, Porbandar for the offence punishable under Sections 3 and 7 of the
Essential Commodities Act and Sections 406, 409, 120B, 465, 467, 471 and 477A of the IPC. The said FIR was registered on 13.01.2023, against 12
persons. The applicant herein was shown as accused in the said FIR and he was also arrested and later on he enlarged on bail. The Porbandar, DSP
made a proposal to detain the applicant and others under the PBM Act of 1980. The District Magistrate, Porbandar, after considering the entire
material supplied by the sponsoring authority, satisfied that with a view to preventing the applicant from acting in any manner prejudicial to the
maintenance of supplies of essential to the community, it is necessary to detain the applicant who derived the gain from the said malpractice, which act
of the applicant defeat the provisions of the Essential Commodities Act.
4. In the aforesaid set of circumstances, by exercising powers under Section 3(1) of the PBM Act of 1980, the District Magistrate, Porbandar passed
detention order dated 07.02.2024 and the same was executed upon the applicant on 04.05.2024. The District Magistrate, Porbandar, after
consideration the entire circumstances and the documentary evidence was of the opinion that mere registration of the FIR against the detenue would
not effectively prevent him from acting in a manner prejudicial to the maintenance of supplies of food grains and further, opined that after releasing on
bail, it quite possible that the detenue will continue with the illegal and antisocial activities and it is imperative for the effective measures to detain the
applicant preventing him from acting in a manner prejudicial to the maintenance of essentially commodities.
5. The detention order was intimated to the State Government along with the grounds on which the order was made and the State Government has
approved the order impugned. The Central Government was also informed along with the grounds of detention, etc.
6. Being aggrieved with the order impugned dated 07.02.2024, the present application has been filed on 06.05.2024.
7. The applicant herein made a representation to State as well as the Central Government.
8. We have heard learned counsel Mr. R. G. Vaghela for the applicant and Ms. Shruti Pathak, learned AGP for the respondent â€" State. The
affidavit-in-reply filed District Magistrate, Porbandar is taken on record.
9. Mr. Vaghela appearing for and on behalf of the applicant detenue, made the following submissions:
(A) That there was a delay in disposal of representation made to the Central Government as well as State Government. The written representation
was made through jail authority and the same was not decided till date and there is no explanation by the respondent authorities. Thus, it is evident that
there is no explanation for the delay in consideration of representation; that a representation of detenue whose liberty is in peril, should be considered
and disposed of as expeditiously as possible and if any delay on the part of the Government, then it should be properly explained, otherwise the time
gape of undue delay would be considered as a fatal because it is a constitutional obligation of the Government to consider the representation
forwarded by the detenue without any delay.
(B) That there is a delay in passing the order of detention, which is evident from the order of the detention itself as the same was passed on
07.02.2024, whereas the FIR under the provisions of the Essential Commodities Act was registered against the applicant and others on 13.01.2023, as
such there is a delay of more than 11 months in passing the order of detention. That in absence of any complaint in the interregnum, the conclusion of
the detaining authority that it was necessary to detain the applicant with a view to preventing him from acting in a manner prejudicial to the
maintenance to the supplies of the commodities essential to the community has no rationality and there is no material placed before the authority to
show that applicant would indulge in future in such kind of activities and therefore, while passing the order, the authority did not apply its mind and in a
mechanical manner, without any material, the order was passed.
(C) That the grounds for detention has no nexus with the expression “acting in any manner prejudicial to the maintenance of supplies of
commodities essential to the community†as explained under Section 3 of Act of PBM 1980 and therefore, where the offence is registered under the
Essential Commodities Act and the applicant has been released on bail, the solitary offence is thus not necessarily sufficient for the action under the
preventive detention.
(D) That there is a delay in execution of the detention order and therefore, the unreasonable and unexplained delay in execution of the order vitiates
the detention order.
10. In view of the aforementioned submissions, learned counsel Mr. Waghela would submit that, considering the solitary offence registered against the
applicant herein, the alleged apprehension recorded by the authority cannot be said to have either affected adversely or are likely to affect adversely
the maintenance of supply of good grains essential to the community and thus, therefore, he prays that the applicant is under detention since
04.05.2024, the order impugned may be quashed and set aside.
11. On the other hand, opposing the application, learned State Counsel Ms. Shruti Pathak reiterating the contents of the affidavit, has contended that,
in the grounds of detention, the detaining authority had adverted to all the evidence collected against the applicant and therefore at this stage, court
may not examine the sufficiency of the grounds etc. She would further urge that, the delay in issuing the order of detention is not fatal and delay per-
se cannot be circumstance to set aside the order. The applicant herein had actively participated in the alleged misappropriation of the huge stock of
essential commodities and had illegally and connivance with the contractor, obtained the sub-contract for his personal gain.
12. In view of the aforesaid contentions, learned State counsel Ms. Shruti Pathak, would urge that, once the offence is registered under the Essential
Commodities Act, the authority can invoke Section 3(1) of the PBM Act, 1980 for passing an order preventing the applicant acting in any manner
prejudicial to the maintenance of supplies of commodities essential to the community. Thus, therefore, there is sufficient material before the authority
for arriving subjective satisfaction to the effect that the act of the applicant would likely to affect supplies of commodities even after he is releasing
from jail and therefore, at this stage, sufficiency of material available to the detaining authority is not to be examined by the Court. Lastly, she would
urge that, there is no delay in passing the detention order as well as examining the representation made by the applicant.
13. Having regard to the facts and circumstances of the present case, the issue falls for our consideration is as to whether the order of detention
passed by the District Magistrate, Porbandar in exercise of his power under the provisions of the PBM Act, 1980 is sustainable in law?
14. Before adverting to the submissions, we may refer to Section 3 of the Act, which authorized the authority to pass an order of detention. Section 3
reads as under:
3. Power to make orders detaining certain persons.â€" (1) The Central Government or a State Government or any officer of the Central
Government, not below the rank of a Joint Secretary to that Government specially empowered for the purposes of this section by that Government, or
any officer of a State Government, not below the rank of a Secretary to that Government specially empowered for the purposes of this section by that
Government, may, if satisfied, with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance
of supplies of the commodities essential to the community it is necessary so to do, make an order directing that such person be detained.
Explanation.â€"For the purposes of this sub-section, the expression “acting in any manner prejudicial to the maintenance of supplies of commodities
essential to the community†means-
(a) committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955 (10 of 1955) or under any other
law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in, any commodity essential to
the community; or
(b) dealing in any commodityâ€
(i) which is an essential commodity as defined in the Essential Commodities Act, 1955 (10 of 1955), or
(ii) with respect to which provisions have been made in any such other law as is referred to in clause (a), with a view to making gain in any manner
which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid.
(2) Any of the following officers, namely:â€
(a) district magistrates;
(b) Commissioners of Police, wherever they have been appointed, may also if satisfied as provided in sub-section (1), exercise the powers conferred
by the said sub-section.
(3) When any order is made under this section by an officer mentioned in sub-section (2) he shall forthwith report the fact to the State Government to
which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the
matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the
State Government:
Provided that where under section 8 the grounds of detention are communicated by the authority making the order after five days but not later than
ten days from the date of detention, this sub-section shall apply subject to the modification that for the words “twelve daysâ€, the words “fifteen
days†shall be substituted.
(4) When any order is made or approved by the State Government under this section or when any order is made under this section by an officer of the
State Government not below the rank of Secretary to that Government specially empowered under sub-section (1) the State Government shall, within
seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in
the opinion of the State Government, have a bearing on the necessity for the order.
15. In light of the statutory provision and considering the grounds for detention, we may first examine the issue with regard to delay in disposal of the
representation by the Central Government. It has been strenuously contended that the delay in deciding the representation would indirectly breach of
the mandate of Article 22(5) of the Constitution of India. On the other hand, learned AGP Ms. Shruti Pathak has contended that there is no time limit
to consider the representation. It is settled legal position of law that there is no inflexible rule regarding the time available to the Government to
consider the representation. However, the authority is bound to consider the representation submitted at the earliest and in case of delay, there must
be explanation to justify the delay so as to avoid the interference of the constitutional courts. The Supreme Court time and again in its various
pronouncements observed and held that, in considering the representation, the diligence of very high degree is expected from the authorities in cases
of preventive detention as it involved curtailment of some of the most constitutional guarantees and therefore, utmost expedition is essential in handling
the representation submitted by the detenue invoking their constitutional right under Article 22(5). Lethargy, lapses, negligence, delay, callousness etc.
on the part of the concerned authorities in dealing with the representation shall be viewed seriously and definitely result in interference by the
constitutional court for breach of the mandate of Article 22(5) of the Constitution of India. Reference can be made of the case of K.M. Abdulla Kunhi
Vs. Union of India, 1991 (1) SCC 476, wherein, the observations of the constitutional bench, made following observations :
“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"" occuring in clause (5) of 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.â€
16. In light of the settled position of law in respect of delay in deciding the representation and considering the peculiar facts of the present case, we
have noticed that the detention order came to be passed on 07.02.2024 and same was executed on 04.05.2024 and thereafter, through jail, the
applicant made a representation to the authority concerned. In the affidavit, there is no explanation whatsoever have been offered by the respondent
as to why the representation has not been decided. If proper explanation would have offered, this Court could certainly consider whether the delay
was occasioned due to permissible reasons or unavoidable causes. In such circumstances, we are of the firm view that, the delay in deciding the
representation, would render the detention invalid as being violative of constitutional obligation enshrined under Article 22(5) of the Constitution of
India.
17. The second contention raised is that, there was a delay in passing the detention order and same vitiates the detention itself. In the facts of the
present case, the authority noticed the irregularities in the stock of the food grains in the month January, 2023. The FIR under the Essential
Commodities Act as well as under the penal laws came to be lodged on 13.01.2023. The sponsoring authority made a proposal to exercise power
under Section 3 of the PBM Act, 1980 on 26.01.2024. The order impugned came to be passed on 07.02.2024. In the aforesaid admitted facts, it is
evident that since 13.01.2023, the authorities were knowing the alleged mal-practise as well as antisocial activities affecting the supply of the
commodities and despite of these facts, the authority did not initiate any proceedings and set silent and waited for about 11 months. In short, we found
that, there is a gap of 11 months in passing the detention order. On the issue of delay in passing the detention order, the Supreme Court in case of
Saeed Zakirhussain Malik Vs. State of Maharashtra (2012) 8 SCC 223, held that, prompt action in such matter should be taken as soon as the incident
as mentioned in the FIR as well as referred in the grounds for detention have taken place. Relevant para-27 reads as under:
“As regards the second contention, as rightly pointed out by learned counsel for the appellant, the delay in passing the detention order, namely, after
15 months vitiates the detention itself. The question whether the prejudicial activities of a person necessitating to pass an order of detention is
proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the
facts and circumstances of each case. Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, however,
when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to
scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why
such a delay has occasionedâ€
18. We take the notice of the admitted fact that during the gap of 11 months time, no any fresh complaint being registered against the applicant. In
absence of any complaint or other materials, the conclusion of the detaining authority that it was necessary to detain the applicant with a view to
preventing him from acting in a manner prejudicial to the maintenance of supplies of the commodities essential to the community has no rationality and
the subjective satisfaction being arrived without any material. In such set of circumstances, we are of the view that considering the undue delay of 11
months between the prejudicial activities and passing of the detention order, the detaining authority failed to examine such delay and did not assign any
reasons or explanation as to why such delay has occasioned.
19. The third contention about the delay in execution of the detention order is also fatal to the respondent. The detention order dated 07.02.2024, was
executed on 04.05.2024. Thus, the order of detention had not been implemented for a long time. On this aspect, the Supreme Court in various
judgments, held and observed that, it is imperative on the part of the detaining authority as well as executing authority to be very vigilant and keep their
eyes skinned but not to turn a blind eye in securing the detenue and executing the detention order, because any indifferent attitude on the part of the
detaining authority or executing authority, will defeat the very purpose of preventive action and turned the detention order as a dead letter and
frustrate the entire proceedings (Nareshkumar Goel Vs. Union of India (AIR 2005 SC 4421). In such circumstances, we are of the considered view
that the delay execution of the detention order, for which there is no explanation is furnished, which led to the assumption that, the live and proximate
link between the grounds of the detention and purpose of detention is snapped.
20. In view of the aforesaid discussions, we came to the conclusion that the impugned detention order has been rendered illegal for three reasons i.e.
(i) there was a delay in passing detention order and (ii) there was unexplained delay in deciding the representation of the applicant detenue, (iii) there
is a delay in implementing the detention order.
21. In light of the above discussions, we have no hesitation in quashing the order of detention on the ground as discussed above, as the detention order
has become illegal for violation of Article 22(5) of the Constitution of India and accordingly, the order of detention dated 07.02.2024 is hereby
quashed. We direct the detenue to be set at liberty forthwith, if he is not required in any other case. Rule is made absolute accordingly. Direct service
permitted.
