ANUPBHAI MANUBHAI JANI DETENUE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Detenue Anupbhai Manubhai Jani has preferred this petition through his wife Khyati Anupbhai Jani, challenging the order of detention which came to be passed by the District Magistrate, Ahmedabad on 6th January, 2000 in exercise of powers under section 3 (2) of the Prevention of Blackmarketing & Maintenance of Supplies of Essential Commodities Act, 1980 ("PBM Act" for short), detaining him under the provisions of the PBM Act.

(2.) The said order was passed with a view to prevent the detenue from dealing in unauthorised petroleum solvents.

(3.) The order is challenged by the petitioner/detenue on various grounds. However, Mr. S.V. Raju, appearing for the petitioner has restricted his arguments to the ground of delay and non-application of mind in considering the representation by the Central Government. He has relied upon the affidavit-in-reply filed on behalf of the Central Government. He submitted that admittedly, as stated in para 4 of the affidavit-in-reply filed on behalf of the Union of India, representation was received by the Central Government on February 4, 2000. The case was referred to the Ministry of Law on February 10, 2000 for advice. Advice was received on 24th February, 2000 and the representation came to be rejected on February 25, 2000 and communicated by telegram on that very day. Mr. Raju, therefore, submitted that the lapse time between February 4, 2000 and February 10, 2000 is not explained by the Central Government. This delay of 6 days has affected the right of the detenue of making an effective representation. Mr. Raju further submitted that there is nothing to indicate as to whether the advice of the Ministry of Law was sought for at the behest of the competent authority of the Central Government. If it is so, there is non-application of mind to the representation on the part of the competent authority and non-consideration thereof as well. This has resulted into delay of about 14 days in taking decision on the representation. This has also adversely affected the right of the detenue guaranteed under Article 22 (5) of the Constitution of India. According to Mr. Raju, therefore, the continued detention of the detenue is rendered bad in law. The petition may, therefore, be allowed and the impugned order be quashed. Mr. Raju places reliance on the decision of the Apex Court in the case of R. Paulsamy v. Union of India (1999 (4) SCC 415).