JUDGMENT:

C.K. THAKKER, J.

1. Leave granted.

2. The present appeal is filed by the State of Maharashtra and others against the sole respondent (original petitioner) against the judgment and order passed by the High Court of Judicature at Bombay (Nagpur Bench) on October 17, 2006 in Writ Petition No. 372 of 2006. By the impugned order, the High Court (partly) allowed the petition filed by the detenu-writ petitioner and set aside the order of detention dated July 27, 2006 passed by the Commissioner of Police (Nagpur City) under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980.

FACTUAL MATRIX

3. The case of the appellants is that one Bhaurao Punjabrao Gawande (detenu) was running a business of transportation of petroleum products and had fleet of tankers for carrying on the said occupation. He was indulging in illegal purchase and sale of blue kerosene oil in black market since last five to six years. Certain cases were also registered against the said Bhaurao under the Essential Commodities Act, 1955 (hereinafter referred to as 1955 Act'). In view of continuous activities of Bhaurao in black-marketing of essential commodity (Kerosene), the Commissioner of Police (appellant No.2 herein), in exercise of power conferred on him by sub-section (1) read with Clause (b) of sub-section (2) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as 'the Act') directed that the said Bhaurao be detained. Grounds of detention were sought to be served to the detenu on the same day.

4. According to the appellants, in accordance with sub-section (3) of Section 3 of the Act, the order of detention passed by the Commissioner of Police was approved by the State Government. The detenu somehow came to know about the order of detention being passed again him and absconded himself. He, therefore, could not be detained, nor served with the order or grounds of detention in support of the order.

WRIT PETITION

5. The detenu, without submitting to the order of detention and surrendering, filed Writ Petition No. 372 of 2006 in the High Court of Bombay (Nagpur Bench) for an appropriate writ, direction or order quashing and setting aside the order of detention dated July 27, 2006 being illegal, unwarranted and vitiated by mala fide. Other reliefs were also sought.

COUNTER AFFIDAVIT

6. An affidavit in reply was filed by the Detaining Authority, inter alia, contending that the petition filed by the detenu was not maintainable at law. The detenu got the information about the order of detention, absconded himself and the order of detention could not be served upon him. The order was, therefore, affixed at a conspicuous place at the residence of the detenu on July 30, 2006 and a panchanama was drawn by the Police Inspector of Sakkardara Police Station, Nagpur. Since the detenu was not available, grounds of detention along with relevant documents also could not be served upon him. It was stated that the order of detention was approved by the State Government. Moreover, the entire proceedings of detention were submitted to the Advisory Board constituted under Section 10 of the Act as required by law. The Government decided the period of detention only after the opinion of the Advisory Board under Section 12 of the Act.

7. On merits, it was contended on behalf of the Detaining Authority that the detenu was indulging in black marketing of kerosene oil which was an 'essential commodity' and several cases had been registered against him. It was also stated that the detenu had executed a bond under the Code of Criminal Procedure, 1973 for good behaviour. In spite of all these steps, the detenu continued to indulge in black marketing activities of essential commodity and th