SURESHBHAI SANKARBHAI PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Sureshbhai Sankarbhai Parmar, petitioner, has filed this habeas corpus petition under Article 226 of the Constitution of India challenging the detention order dated 20.12.2005 passed by the District Magistrate, Surendranagar, respondent No. 2, under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as "PBM Act") as being illegal, invalid and in violation of Articles 14, 21 and 22 of the Constitution of India. The petition was filed on 26.12.2005. When the matter was placed for hearing on 27.12.2005 this Court issued rule returnable on 12.1.2006. On behalf of the respondent State of Gujarat, respondent No. 1; District Magistrate, Surendranagar, respondent No. 2 and Jail Superintendent, Porbandar, respondent No. 3 Mr. L.R. Pujari, learned AGP, appears and on behalf of Union of India Mr. M.A. Shaikh, Central Government Standing Counsel, appears.

(2.) In support of the contention that the document which has a relevance and bearing on the order of detention to be passed which according to the learned advocate for the petitioner is a significant document and if the same is not considered the order of detention stands vitiated. The learned counsel has relied on the judgement of Hon'ble Supreme Court in the case of SITA RAM SOMANI VS. STATE OF RAJASTHAN AND OTHERS reported in (1986) 2 SCC 86. From the said judgement it appears that the representation made by the petitioner was before the Screening Committee but the same was not placed before the detaining authority and the detaining authority has stated that the same was not considered. According to the Hon'ble Supreme Court it was the detaining authority who has to consider the relevant material before taking decision whether it was necessary to detain the petitioner under detention law or not. (1) The learned advocate for the petitioner has relied on another decision of the Hon'ble Supreme Court in the case of AYYA @ AYUB VS. STATE OF U.P. AND ANOTHER reported in (1989) 1 SCC 374 particularly para 28. The relevant portion of para 28 is reproduced as under:

(3.) On the other hand Mr. L.R. Pujari, learned AGP for the respondents has stated that the representation has been made by the petitioner but if the authority considers that for passing the detention order the same is not relevant and material document, the authority can ignore same and failing to put up same by the sponsoring authority before the detaining authority does not vitiate the order of detention. According to the learned AGP all other material documents have been placed by the sponsoring authority to the detaining authority. He has relied on the affidavit of Dhananjay Dwivedi, District Magistrate, Surendranagar, dated 16.2.2005. It was stated that the authority has considered the entire facts and circumstances of the case and has passed order with proper application of mind to all the relevant materials placed before the authority and to the facts and circumstances of the case as well as legal provisions applicable to the facts of the case and therefore no right much less fundamental right of the petitioner is violated by the authority. (1) I have considered the facts and circumstances of the case. It is no doubt true that the petitioner has no right to make representation before the detention order is passed. However, if the petitioner has made a representation to the authority and invited attention to the grounds that in the facts and circumstances the authority may not pass any detention order. The said representation shows various facts and grounds and clearly pointed out legal position and guidelines and thereafter requested the authority that before the authority passes any order the authority may consider the the representation. According to this Court the said representation has a bearing on the aspect as to whether order of detention is to be passed or not. The serious material was placed before the authority. On considering the same, it may happen that the detaining authority may confirm the order or may not confirm the order. Thus the decision making process may continue in favour of the detenu or may not continue in favour of the detenu after considering the representation which has been filed by the petitioner. To that extent the representation made by the petitioner which the petitioner is not entitled to make under the legal position, has a great relevance on the decision making process of the detaining authority for passing the order. In view of this and in view of the aforesaid judgements, namely AYYA @ AYUB VS. STATE OF U.P. & ANOTHER (supra), AHAMED NASSAR VS. STATE OF TAMIL NADU & OTHERS (supra), V.C. MOHAN VS. UNION OF INDIA & OTHERS (supra) and K.S. NAGAMUTHU VS. STATE OF TAMIL NADU & ORS. (supra) of the Hon'ble Supreme Court where the Hon'ble Supreme Court has categorically stated that when the material document which can affect the mind of the authority while passing the order and if the said document is not placed before the detaining authority by sponsoring authority, the order of the authority is vitiated. In view of the same, the contention raised by the learned advocate for the petitioner is required to be accepted. It may be noted that there are several other grounds mentioned in this petition but I have not considered any of those grounds.