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1992 Supreme(Guj) 233
Gujarat High Court
Judgename :B.J.Shethna, N.J.Pandya
MAGANBHAI UKABHAI MAKWANA - Appellant
Versus
DISTRICT MAGISTRATE BHAVNAGAR - Respondent
Civil Revision 887 of .
Decided On : 09/09/1992
Headnote:
Constitution of India – Article 22 –Section 1,3,11,14 - Detention order – Advisory Board - Representation of to State Government - Representation was considered by the Board independently as was expected of it point raised on behalf of the detenu that representation was considered during pendency of the reference – – Held, Whatever may be decision whether in favour of detenu or not, it must be communicated. No doubts he had conceded that the section itself does not prescribe this. But, according to him, when the learned Judges of this Court in the judgment given in Application referred to hereinabove had considered the aspect of representation along with the aspect of approval of the order by Union of india in exercise of its power on the same footing and when in case learned Judges of the Supreme Court have laid down that it should be done with reasonable expedition, it necessarily follows that the decision must be communicated. According to this would be nothing else, but discharge of its duly by the Central Government, as suty is certainly cast on it to consider the question whether power of revocation be exercised or not ? In that regard he had relied on a full Bench decision in Gauhati High Court reported in 1984 Criminal Law Journal – However we find from paragraph 33 of judgment that it is considered to be a matter of duty on Central Government so far as exercise of power u/sec. 14 read with Section 1 read with Section 3 (5) of PASA. The duty, therefore, is to exercise its power with which we wholeheartedly agree – It cannot be said by Central Government that it being a matter of discretion, it may choose not to exercise the power and thereby can claim that it will never consider report of State Government and will sit over it – Petition is liable to be dismissed.
( 1 ) THE petitioner-detenu is detained as per the order dated 18-3-1992 of the District Magistrate of Bhavnagar under the provisions of prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as PBM) The grounds of detention are at Annexure-B to the petition from pages 10 to 18. The alleged activities either by way of Commission or omission have been narrated at length in the grounds of detention and being satisfied, the detaining authority has passed the detention order.
( 2 ) ON behalf of the petitioner L. A. for A. R. Thakkar appearing for Mr. Y. S. Lakhani has urged that the copies of documents supplied along with grounds of detention, some of them, are either wholly illegal or partly illegible. At page 3 paragraph 4 in Ground A the details of these various illegible documents have been given. However, on verification of the papers that are supplied to the detenu, the various number of pages as set out in Ground A were found to be legible. This contention, therefore, cannot be sustained.
( 3 ) THE second ground urged on behalf of the detenu was that he made a representation dated 9/04/1992. It was submitted to the Advisory Board on the date on which the detenu was to be heard by the Advisory Board. The Advisory Board submitted its report on 1-5-1992, but, before that, however, it had forwarded the representation of the detenu to the State Government which came to be considered by the State Government after the receipt of the report inasmuch as the date of consideration of the representation is 4-5-1992. It is also clarified after ascertaining the position from the learned APP that the representation was also considered by the Board independently as was expected of it. The point raised on behalf of the detenu that the representation was considered during the pendency of the reference in view of the aforesaid dates therefore would not survive. The attempt made on behalf of the detenu to get the benefit of the decision of the Supreme Court in K. M. Abdulla kunhilkand B. Abdul Khander v. Union of India reported in AIR 1991 SC 574 therefore is no longer available to the detenu.
( 4 ) THE Union of India exercising supervisory jurisdiction under Section 14 of the PBM has filed affidavit-in-reply twice. First is dated 26-6-1992, pages 19 to 20 and the second is dated 17-7-1992, page 21. However, with regard to first affidavit paragraph 4 the deponent on behalf of the Union of India Shri S. C. Brahma, Director in the Ministry of Civil Supplies and Public distribution, came out with dates, clearly there was a mistake, because, he has referred to the impugned order having been passed on 23-3-1992 in his affidavit paragraph 4, while the order in fact, has been passed on 18-3-1992. The rest of the dates, therefore, obviously, would not tally. Naturally, on behalf of the detenu, L. A. Mr. Thakkar has strongly urged that these details themselves would be enough to upset the order. At the same time, in fairness to Mr. Thakkar, it must be stated that he had also requested the Court to direct the Union of India to keep present in the Court the original file, so that facts can be verified. Accordingly, original file was kept present and on verification, it was found by us that the dates which are mentioned in paragraph 4 are recorded in that file, but, they are recorded in respect of another case of PBM and so far as the dates pertaining to the present detenu are concerned, they are correctly recorded with regard to the passing of the order, receipt of the report of the State Government and the date of its consideration.
( 5 ) THE details ascertained in this regard from the file shown to the Court by L. A. Mr. Bhagat for respondent No. 4 show the following details the detention order dated 18-3-1992 was approved on 26/27-3-1992, received by the Director on 30-3-1992 and was placed for consideration on 16-4-1992 and was actually considered on 20-4-19
