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2002 DIGILAW 494 (GUJ)

Abdulrasid Abdulgani Shaikh v. STATE

2002-07-04

C.K.BUCH

body2002
C. K. BUCH, J. ( 1 ) INVOKING the jurisdiction under Art. 226 of the Constitution of india-the petitioner detenu has prayed for appropriate writ direction or order and also to quash and set aside the order of detention dated 21. 5. 2002 passed by the District magistrate, Kheda at Nadiad passed against the petitioner detenu in exercise of the powers conferred on him under Sec. 2 (2) of the Prevention of Black-marketing and maintenance of Supplies of Essential Commodities Act, 1985 (hereinafter referred to as thepbm Act ). ( 2 ) HEARD Mr. H. R. Prajapati learned Counsel for the petitioner-detenu, Mr. H. H. Patel learned AGP for the State of Gujarat and Ms. P. J. Davawala learned Addl. Standing Counsel for the Union of India. Mr. H. H. Patel tendered the affidavit-in-reply filed on behalf of Government of Gujarat and Ms. P. J. Davawala tendered the affidavit-in-reply submitted on behalf of Union of India. The affidavits-in-reply are taken on record. ( 3 ) THE petitioner has assailed the legality and validity of the order of detention on various grounds mentioned in the memo of the petition and the same are respondent by the State Government and the Union of India by their respective affidavits. ( 4 ) THE learned Counsel for the petitioner has focused on one ground and, therefore, it is not necessary to deal with the details and other grounds mentioned in the memo of this petition. ( 5 ) ACCORDING to the detaining authority the petitioner also found in mishandling the stock and black-marketing blue Kerosene-an essential commodity which is normally distributed through Government fair price shops and his activity was also found to be dangerous. The detaining authority found that unless the petitioner is detained his activity will not be prevented and he would continue with these affairs. ( 6 ) MR. Prajapati learned Advocate for the petitioner has submitted that after the execution of the order of detention the detenu had sent representation to the detaining authority on 22. 5. 2002 i. e. , on the next day of the execution of the order. This representation was received by the detaining authority on 27. 5. 2002 and the same was rejected by the detaining authority. 5. 2002 i. e. , on the next day of the execution of the order. This representation was received by the detaining authority on 27. 5. 2002 and the same was rejected by the detaining authority. Of course a formal order of rejection of the representation is not available on record but the Xerox copy of the communication received by the petitioner-detenu is on record since the learned Counsel appearing for the petitioner has today during the course of the arguments has tendered the Xerox copy of the communication and the same is taken on record. The legal requirement is that the detaining authority supposed to forward the representation to the State Government and also to the Union of India. The communication dated 31. 5. 2002 positively shows about the despatch of the representation to the State Government by the detaining authority. The endorsement at the bottom of the communication will reveal this. However, the say of the State Government in the affidavit-in-reply tendered today is that the Government had never received such a representation of the detenu. The affidavit-in-reply filed on behalf of the Union of India reveals the same fact situation wherein it is stated that the representation dated 25. 5. 2002 was not received in the concerned section of the department of Consumer Affairs of Union of India. So both these authorities who would have revoked the order of detention had no opportunity to exercise their respective jurisdiction. It seems that the office of the detaining authority has failed in dispatching the copy of the representation to both these authorities. This aspect goes to the root of the matter and the validity of the continued detention of the detenu. The opportunity exercised by the detenu is very well in time but the same has not been responded on account of failure on the part of the machinery of the office of the detaining authority which has resulted into frustration. So on this ground, the continued detention of the detenu vitiates or the same shall have to be turned down. ( 7 ) IN the circumstances the Court feels that his inaction or negligence or error goes to the root of the validity of the order of detention. Therefore, the continued detention of the detenu requires to be quashed and set aside. ( 7 ) IN the circumstances the Court feels that his inaction or negligence or error goes to the root of the validity of the order of detention. Therefore, the continued detention of the detenu requires to be quashed and set aside. ( 8 ) IT is not necessary to discuss or mention other grounds and, therefore, they are not discussed. ( 9 ) IN the result this petition is allowed. The impugned order of detention dated 21. 5. 2002 passed by the District Magistrate, Kheda at Nadiad against the petitioner detenu is hereby quashed and set aside. The detenu-Abdulrashid Abdulgani Shaikh is ordered to be set at liberty forthwith if he is not required to be detained in any other case. Rule is made absolute. Direct Service is permitted. .