MAHESHBHAI U PAREKH Vs. DISTRICT MAGISTRATE BHAVANAGAR

JUDGEMENT

(1.) The petitioner who happens to be a cousin brother of the detenu-Rajnikant Shantilal Parekh, has by this writ of Habeas Corpus, challenged the impugned order of detention dated 26-8-1992 made by the District Magistrate, Bhavnagar under Sec.3 (2) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, inter alia praying for quashing and setting aside the same and releasing the detenu setting him at liberty forthwith on the following two grounds, namely -

(2.) While driving home the two points raised above and giving necessary details in support of the same, Mr P.M. Thakkar, the learned advocate for the petitioner, first of all has invited out attention to the relevant para-6 of the grounds of detention wherein, in opening three lines of the same, it has been stated that - "Against your detention order, you have got a Constitutional right to make the representation. This can be made at the following addresses through the Superintendent, Disrict Jail. Bharuch." Thereafter, Thakkar invited our attention to in the committal order dated 26-8-1992, wherein the Detaining Authority himself has directed the detenu to be detained in District Jail, Bhuj at Kachchh two apparent inconsistencies appearing in firstly in the first three lines of the Grounds of Detention informing the detenu to submit his representation through Bharuch Jail on the one hand, and on the other hand subsequently directing the detenu to be kept in District Jail, Bhuj at Kachchh by the committal order - both of which orders are signed by the Detaining Authority himself, clearly demonstrates the non- application of mind and mechanical exercise of power. Mr. Thakkar further submitted that when the detenu is given Constitutional and Statutory right of making, and that too of making expeditious representation, it is common sense that the said right cannot be so exercised at the earliest unless and untill the detenu makes representation from the Jail where he has been directed to be detained. On the basis of this said inconsistency, Mr. Thakkar vehemently contended that what indeed is the guarantee that the Detaining Authority has personally perused the relevant papers before reaching the so-called subjective satisfaction of immediate need to preventively detain the detenu by passing necessary orders of his detention. Mr. Thakkar further submitted that apart this, as directed by the Detaining Authority in para-6 of the Grounds of Detention, the detenu had submitted a representation dated 31-10-1992 addressed to the Advisory Board, Gandhinagar, through the Superintendent, District Jail, Bharuch. This was returned by the said authority vide its urgent letter O/w. No. 1570/92, dated 4-11-1992 addressed to the learned Advocate Mr. P.M. Thakkar at his Ahmedabad Office address, stating therein that there was no detenu in the name of Rajnikant S. Parikh in Bharuch Jail. Taking a strong exception against the return of the said representation by Bharuch Jail Authorities, Mr. Thakkar once again invited our attention to the specific direction in para-6 of the grounds of detention and submitted that when the detenu was expressly informed and manifestly given to understand that he can make representation to the concerned authorities through the Agency of the District Jail, Bharuch, the said jail authorities had no business to return the same. Mr. Thakkar, on the basis of above, further submitted that infact, the Jail authorities at Bharuch were expected to expeditiously despatch the same to the Advisory Board which as could be seen, has not been done. Mr. Thakkar on the basis of the above, finally urged that taking into consideration on the one hand the first contention raised above, the same clearly vitiates the subjective satisfaction of the Detaining Authority as the Order ex-facie is passed mechanically without seeing any papers, and on the other hand, since the representation was returned and has remained unattended till today, the invaluable right of the detenu under Article 22 (5) of the Constitution of his representation being considered having been violated, the same renders his further continued detention illegal and unconstitutional. Mr. Thakkar under the circumstances submitted that from the above whatever view the Court ultimately may take, the fact remains that the impugned order of detention deserves to be quashed and set-aside, warranting the detenu to be released and set at liberty forthwith.

(3.) Mr. Y.F. Mehta, the learned APP appearing for the respondents, before dealing with the aforesaid two contentions raised by Mr. Thakkar, first of all submitted that the subsequent representation dated 9-11-1992 addressed to the Advisory Board has been immediately considered and disposed of and the result thereof was also communicated to the detenu. Therefore, to the said extent, the procedural safeguards guaranteed under Article 22 (S) of the Constitution has been duly complied with by the authorities. Mr. Mehta thereafter dealing with the first contention submitted that the first representation dated 31-10- 1992 addressed to the Advisory Board at Ahmedabad was submitted to the Superintendent, Sub-Jail, Bharuch who on the very day of receipt of the same, quite justifiably returned at the office address of the learned advocate Mr. P.M. Thakkar at Ahmedabad on the ground that the detenu-Rajnikant was not detained in Bharuch Jail. Under the circumstances, no grievance can legitimately be permitted to be made for not despatching the said representation to the Advisory Board. Mr. Mehta in view of the peculiar facts of the present case further submitted that it was possible because of some slip of pen or some inadvertent, honest, bonafide error that the detenu was mis-informed in para- 6 of the grounds of detention that he can submit his representation through the Superintendent, District Jail, Bharuch instead of through District Jail, Bhuj. Mr. Mehta further submitted that such an honest, minor mistake need not be viewed or equated with non-application of mind or mechanical exercise of power, as asserted by the learned advocate for the petitioner, which in fact in nothing more than much ado about nothing. Similarly, while dealing with the second contention, Mr. Mehta submitted that though it would have been indeed quite desirable for the jail authorities at Bharuch to forward the representation dated 31-10-1992 to the Advisory Board immediately, however, taking into consideration the expeditious despatch back of the said representation on quite justifiable ground, as stated above, to the learned advocate for the detenu at Ahmedabad, no importance worth the name can ever be attached to it On the basis of these submissions, Mr. Mehta finally urged that the legality and validity of the impugned order of detention cannot be questioned and has to be sustained.