Gujarat High Court Quashes Detention Order Under Black Marketing Prevention Law, Says Not Known If Statutory Provisions Followed

Observing that order of detention passed by the State Government, along with the grounds, was mandatorily required to be forwarded to the Central Government within seven days, the Gujarat High Court quashed an order of detention under Prevention of Black Marketing & Maintenance of Supplies of Essential Commodities Act, 1980.

The division bench of Justices AS Supehia and Divyesh A Joshi at the outset recorded that no affidavit-in-reply was filed by the Detaining Authority in the case filed by the detenu. It also noted that the impugned order of detention is premised on the basis of registration of a solitary FIR of the alleged irregularity committed by the petitioner in violation of the provisions of the Act. It is not in dispute that the petitioner has been enlarged on bail in the aforesaid offence, the court said.

"In such circumstances, referred to above, we are of the view that in the absence of any affidavit filed by the respondent-authority specifying as to whether any report has been forwarded to the Central Government or not, as per provisions as referred to herein above, the order of detention would become vulnerable," said the court.

It added, "Thus it appears that the order of detention which has been passed by the State Government along with the grounds were mandatorily required to be forwarded to the Central Government within a period seven days, however in the present case, the State Government has not forwarded the report to the Central Government together with the grounds on which the order has been passed within the stipulated period, and in the absence of such exercise being undertaken, the impugned order is required to be quashed and set aside on this ground".

The bench also noted that the petitioner had made a representation against the detention order to the District Magistrate, i.e, the Detaining Authority, however, nothing was brought on record as to whether such representation was decided or not.

"It is also not coming on record whether the time limit, as prescribed under the provisions of Section 3 of the Act has been complied with or not. The State Government was required to approve the order passed by the Detaining Authority within the time limit as prescribed in sub-section (3) and the same has to be reported to the Central Government within a period of seven days as provided under sub-section (4) of the Act. However, nothing is pointed out to this Court as to whether such statutory provisions have been followed or not. Hence, the impugned order of detention is required to be quashed and set aside on this ground also," added the court.

While quashing the impugned order, the court said the detenu is ordered to be set at liberty forthwith

Submissions

Advocate H.R. Prajapati, representing the petitioner, earlier argued that he is not involved in the black marketing of essential commodities and is only involved in the transport business. He also argued that the detention order was passed without considering any material on record and without sending the report to the State Government, rendering it illegal. Prajapati relied on Section 3 of the Act, 1980, and its sub-sections to support his arguments.

He further submitted that since the respondent-State Authorities did not file an affidavit, it is not known whether the order was reported to the Central Government within the time stipulated under the provisions of sub-section (4) of section 3. 

On the other hand, the Assistant Government Pleader Aditya Jadeja, argued that the detention order does not require any interference as it was appropriately passed. He argued that since the petitioner was found to be engaged in illegal activities and an FIR was registered against him under the provisions of the Act, the authorities decided to detain him to prevent further illegal activities. He stated that the detention order contained all the relevant facts, including the registration of the FIR, and was self-explanatory.

Case Title: RAJENDRAKUMAR @ RAJ S/O KHEMABHAI MAKWANA Versus DISTRICT MAGISTRATE, AHMEDABAD

Case Citation: 2023 Livelaw (Guj) 77

For the Petitioner(s): MR BHAVIK R SAMANI(8339)

For the Respondent(s) No. 1,2,3,4: No. 1 MR. ADITYA JADEJA, LD. ASST. GOVERNMENT PLEADER

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