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2007 DIGILAW 788 (GUJ)

MUKESHBHAI JAHABHAI KOTAR v. STATE OF GUJARAT

2007-12-07

M.D.SHAH

body2007
( 1 ) BY way of this Special Civil Application under Article 226 of the Constitution of India, the present petitioner has challenged the detention order dated 12. 9. 2007 passed by the respondent No. 2-District Magistrate, Supply Branch, Bhavnagar, in exercise of powers conferred under sub-section (2) of section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (for short, the Act ) with a view to prevent the petitioner from black marketing essential commodities and acting in any manner prejudicial to the maintenance of supplies of essential commodities essential to the community. ( 2 ) AFTER a thorough checking of the concerned witnesses, the petitioner s firm was found to be indulging in black marketing. FIR being CR No. 1-68/2007 was registered with Umrala police station under the provisions of Essential Commodities Act. ( 3 ) HEARD the learned advocate for the detenu and the learned Addl. Central Government Standing Counsel and the learned AGP for the respondents. ( 4 ) IT is submitted by Mr Dave, learned AGP that while perusing the record, it seems that the detenu has sent the representation to the District Magistrate only and the same was rejected by the District Magistrate vide communication dated 21. 9. 2007. The detenu has not forwarded the representation to the State Government as well as to the Central Government. ( 5 ) TAKING into consideration the ratio laid down by the Apex Court in AIR 1991 SC 1983 and the judgment of this court dated 28. 7. 1993 delivered in Special Civil Application No. 765 and 766 of 1993, duty is cast on the District Magistrate to send the representation to the competent authority for its consideration. However, he has failed to do so. ( 6 ) IT is an admitted fact that the detenu has made representation dated 18. 9. 2007 through his advocate for forwarding it to the Central Government as well as the State Government. The District Magistrate ought to have specifically asked to forward the said representation to the State as well as Central Government and if the representation was not forwarded by the District Magistrate to the State as well as Central Government, it is clear violation of Article 22 (5) of the Constitution of India. Therefore, the impugned order of detention is liable to be quashed and set aside. Therefore, the impugned order of detention is liable to be quashed and set aside. Consequently, the impugned order of detention is liable to be quashed and set aside. ( 7 ) IN the result, this Special Civil Application is allowed. The order of detention dated 12. 9. 2007 passed by the respondent No. 2 is hereby quashed and set aside. The detenu is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. Direct service is permitted.