Municipal Commissioner with Additional Charge of DM Can Order Detention Under Prevention of Black Marketing and Maintenance of Supplies and Commodities Act: Madhya Pradesh HC

The division bench of Justice Vivek Rusia and Justice Subodh Abhyankar was essentially dealing with a petition moved by the mother of detainee. She argued that the order of detention of her son passed by the Municipal Commissioner was illegal as the Commissioner was neither a competent authority to passed the order U/S 3(2) nor did she timely communicate about the detention order along with grounds for detention to the State Government, as required U/S 3(3) of the Act of 1980.

As per the FIR, the detainee and other accused are charged under under Sections 420, 120-B and 406 IPC along with Section 3 and 7 of Essential Commodities Act, 1955 for irregularities in sale of goods and maintenance of a fair price shop. The District Supply Controller informed the Municipal Commissioner regarding the alleged offences committed. Acting upon it, she directed the detention of the detainee for an unspecified period pursuant to the power conferred U/S 3(1), 3(2) of the Act of 1980.

Counsel for the Petitioner asserted that a person who is holding the additional charge cannot pass an order of detention as the provisions under the Act of 1980 have to be strictly construed. He relied upon the decisions rendered by the Supreme Court in Ajaib Singh v. State of Punjab and Hetchin Haokip v. State of Manipur & Ors. He further submitted that no communication, as required U/S 3(3) of the Act of 1980 has been made and even if it is made, it was not forthwith, as the order has been passed on 05.10.2021, whereas the intimation was made on 13.10.2021.

It was also argued by the Counsel for Petitioner that the order of detention was for an unspecified period which runs contrary to Article 22(4)(a) of the Constitution of India. He referred to the decision of the High Court in Khurshid v. State of Madhya Pradesh & Ors. wherein it was held that if the order of detention does not specify the period of detention, then such order is vitiated. He further argued that the impugned order was not at all necessary specially when the detainee was already booked under the provisions of Essential Commodities Act as well as IPC.

Per contra, Counsel for the State submitted that the Municipal Commissioner, who was given the additional charge of DM, acted within the bounds of the power conferred upon her by the Chief Secretary of Madhya Pradesh by the order of the Governor of State. He further submitted that the detention is for 6 months and not for an indefinite period. As far as the requirement of communication U/S 3(3) of the Act of 1980 was concerned, it was argued that the same is with respect to cases wherein the detainee is immediately taken into custody. In the present case, even though the order of detention was passed on 05.10.2021, the detainee was taken into custody on 18.11.2021 as he was absconding. The intimation was given to the State Government prior to the said date i.e., on 12.10.2021, which was approved by the State on 13.10.2021. Intimation to this effect was also sent to the Central Government on 18.10.2021. Therefore, the State concluded, there was no merit in the arguments put forth by the Petitioner.

Counsel for the Petitioner in his rebuttal argued that the acting DM was not authorized by the State Government to pass any order of detention, as her authorization letter cannot be said to be extended for the purposes of the Act of 1980. He referred to Section 20(3) CRPC, wherein a person who is holding an additional charge can exercise its powers of the DM so far as it relates to the CRPC only.

The Court noted that the decision in Ajab Singh case was distinguished in a fairly recent decision given by the Apex Court in State of M.P. v. Dharmendra Rathore. In the said case, the Supreme Court had held that Ajab Singh case pertains to the Defence of India Act,1962 which specifically provides that an order of detention cannot be passsed by any authourity lower than the District Magistrate. This was not the position with respect to M.P.Rajya Suraksha Adhiniyam, 1990.

The Court also referred to the full bench judgement of the High Court in Girja Shankar Shukla v. Sub- Divisional Officer, Harda and Ors., wherein the Court distinguished Ajab Singh case and held that SDO placed in charge of duties of Collector in the latter's absence can preside over a meeting as provided U/S 55(3) of the Municipalities Act, 1961.

Examining the provisions U/S 3(1)(2) of the Act of 1980, the Court held that there is no prohibition that an order of detention cannot be passed by an officer lower in rank to DM. So far as assigning of the duties of the DM or giving an additional charge of the DM to the Municipal Commissioner was concerned, the Court noted that the same is governed by Section 20 (3) CRPC.

The Court further scrutinized Section 20 CRPC and observed-

A close scrutiny of the aforesaid section clearly reveals that as per sub-section (2) of s.20, the State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have such of the powers of a District Magistrate under this Code or under any other law for the time being in force, as may be directed by the State Government. Whereas, Sub-section (3) of Section 20 of the Code provides for temporary arrangements if a vacancy has arisen in the office of the DM. S.20(3) of the Code is pari materia to s.11 of the Code of 1898, which has already been considered by the full bench of this court in the case of Girija Shankar Shukla (supra) .

Collating its interpretation of the provisions and the relevant judgments, the Court held that the Municipal Commissioner exercised her powers within the bounds of law when she ordered the detention of the detainee. It noted-

Sub-section (2) of Section 3 of the Act of 1980 clearly provides that such an order of detention can be passed by the District Magistrates or also by Commissioners of Police, wherever they have been appointed. In such circumstances, when Ms. Pal, the Municipal Commisionier, was given the charge of the Distrct Magistrate, it can be safely presumed that she was also empowered to pass an order under the Act of 1980. As, it is apparent from the aforesaid decision in the case of Girija Shankar Shukla (supra), that unless there is a prohibition, express or implied, the function of District Magistrate can be performed by an Additional Collector where a proper delegation has been made. Thus, it is held that the Municipal Commissioner, who was also given the charge of the DM by a specific order, was competent to pass the order detention under the Act of 1980 and thus, the impugned order cannot be faulted with so far as the competency of the District Magistrate is concerned.

With regards to the period of detention and the communication to the State Government, the Court concurred with the submission made by the State that since the detainee had absconded and was not arrested on the day the order of detention was passed, there was no reason for the DM to forthwith forward the order of detention. It also noted that the State Government has prescribed the detention of six months as provided U/S 12 of the Act of 1980. Therefore, the Court decided not to interfere in the matter and consequently, dismissed the Petition.

Case Title: Laxmi Sagar w/o Kamal Kishore Sagar vs. State of Madhya Pradesh & others 

Citation: 2022 LiveLaw (MP) 23

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