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2022 DIGILAW 818 (MP)

Aslam v. State of Madhya Pradesh

2022-06-15

RAVI MALIMATH, VISHAL MISHRA

body2022
ORDER 1. The case of the petitioner is that the respondents-authorities passed an order dated 8.4.2022 in exercise of the powers under sub-section (2) of section 3 of the Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act, 1980 (for short "the Act"). Thereafter, he made a representation to the competent authorities. The same is not considered. The Government approved the order of detention. Questioning the same, the instant petition is filed. 2. Shri Khare, learned senior counsel appearing for the petitioner's counsel submits that the impugned order of detention is bad in law and is liable to be set aside. That no ingredients of section 3 of the Act have been made out that would warrant detention of the petitioner under the said Act. That the respondents have failed to consider the representation made by the petitioner against the order of detention. That the order of detention has been passed in a mechanical manner without due application of mind. Hence, he pleads that the petition be allowed. 3. The same is disputed by Shri B.D. Singh - learned Government Advocate appearing on behalf of the respondents. They have filed their return. It is their case that the petitioner has indulged in various offences under the Essential Commodities Act as well as under the Indian Penal Code. That various cases have been registered against him. Therefore, in order to prevent him from committing further crimes the instant order has been passed. Hence, he pleads that there is no error in passing the impugned order of detention. That the order of detention has been passed in the larger interest of the society, hence, no interference is called for. 4. Heard learned counsels. 5. Subsequent to the order of detention passed by the District Magistrate dated 8.4.2022, the opinion of the Advisory Board was sought for. The Advisory Board by its order dated 11.5.2022 ratified the order of detention dated 8.4.2022. Thereafter, the matter was placed before the State Government for its approval. By the order dated 18.5.2022, the State Government approved the order of detention. 6. The Advisory Board by its order dated 11.5.2022 ratified the order of detention dated 8.4.2022. Thereafter, the matter was placed before the State Government for its approval. By the order dated 18.5.2022, the State Government approved the order of detention. 6. In the interregnum, the case of the petitioner is that a representation vide Annexure P-5 was made by him to the District Magistrate on 23.4.2022 and a copy of the same was also marked to (1) Secretary, Home Department, State of M.P., Bhopal; (2) Secretary, Ministry of Home Affairs, North Block, New Delhi and (3) Secretary, Advisory Board constituted under the said Act. The representation made by the petitioner-detenu was also forwarded by the brother of the detenu in terms of Annexure P-6 dated 23.4.2022, which was acknowledged on 26.4.2022. 7. The records have been summoned. We have considered the same. The learned Government Advocate has taken us through the order passed by the Government approving the order of detention. The said order would indicate that representations were made by the detenu. However, on re-reading the said order of the Government, the same does not indicate that the representation of the detenu was considered at all. It merely narrates that in view of the fact that the Advisory Board had opined with regard to the detention of the detenu, the orders have been affirmed by the State. We are of the considered view that the orders of the Government would become unsustainable on this ground alone. 8. The Hon'ble Supreme Court in a catena of judgments one being reported in 2021 SCC OnLine SC 1019 (Sarabjeet Singh Mokha v. District Magistrate, Jabalpur and others) held that non-consideration of the representation of the detenu would vitiate the orders of detention. The same is a settled position of law which is not disputed by the learned Government Advocate. Since the material on record does not indicate the consideration of the representation of the detenu, the orders of detention would not stand. 9. Consequently, the petition is allowed. The order of detention dated 8.4.2022 passed by the respondent No.2 is quashed. The petitioner-detenu is directed to be released from custody forthwith, if he is not required in any other case. 10. The Registry to communicate the operative portion of this order to the concerned Jail Authorities at Khandwa.