IMPORTANT POINT
The right to make an effective representation under Article 22(5) is fundamental, and failure to provide legible documents violates this right, rendering the detention order illegal.

ORDER :

Ilesh J. Vora, J.

1. By this petition under Article 226 of the Constitution of India, petitioner – Mohammed Shahid Abdulkadar Sabugar has challenged the order dated 01.03.2024 passed by the 1st respondent – District Magistrate, Himmatnagar directing him to be detained under the provisions of the Prevention of the Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as “the said Act” for short).

2. The said order has been passed in purported exercise of powers conferred by sub-section (1) read with sub-clause (b) of sub-section (2) of Section 3 of the said Act.

3. Brief facts giving rise to file the petition are that on 08.10.2023, the District Supply Officer, Himmatnagar received a telephonic message that the huge quantity of fortified rice was illegally transported in a vehicle No. GJ- 09-AU-1512 and the same was to be delivered at the factory of Son Agro Foods, Ilol, Himmatnagar. The team of responsible officer, intercepted the vehicle and also raided the factory premises and found that the huge quantity of government fortified rice to be distributed by the Public Distribution System purchased by the firm illegally for personal gain. In such set of circumstances, the offence under the provisions of The Essential Commodities Act, 1955 came to be registered on 20.11.2023 with Himmatnagar Rural Police Station against the petitioner and others. The District Magistrate, Himmatnagar, considering the material facts placed before him, satisfied that with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the commodity, it is necessary to preventively detain the petitioner under the said Act and accordingly, the order impugned dated 01.03.2024 came to be passed. The petitioner was supplied with all the documents, relied by the detaining authority and informed him the grounds on which the order has been made.

4. The order impugned has been challenged by the petitioner on the following grounds :

(A) The raid as alleged at the place of business was conducted on 08.10.2023. The FIR for the commission of the offence under the Essential Commodities Act came to be filed on 20.11.2023 and order of detention was made on 01.03.2024 i.e. it was made 4 months and 15 days thereafter. It is not in dispute that after the inspection and raid carried out and registration of the FIR, no any fresh complaint or any incident of black-marketing against the petitioner reported in the interregnum, thus, therefore, the conclusion of the detaining authority that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies of commodities essential to the commodity has no rationality and therefore, delay in passing the order of detention snapping the live and proximate link between the prejudicial activities and purpose of detention and failure on the part of the authority in explaining such delay in any manner vitiate the entire proceedings (Susantakumar Banik Vs. State of Tripura (Criminal Appeal no.1708/2022), decided by the Supreme Court on 30.09.2022).

(B) There has been delay in disposal of representation made to the Central Government as well as State Government. It is the constitution right to detenue to make a representation at the earliest opportunity guaranteed by Article 22(5) of the Constitution of India. In the affidavit filed by the District Magistrate, there is absolutely no explanation for the inordinate delay in considering the representation and non-consideration of the representation has violated Article 22(5) of the Constitution of India, and thereby, the detention has become illegal. On this point, counsel has placed reliance on the decision of the Apex Court in the case of Rupesh Kantilal Savla Vs. State of Gujarat, 2000 SCC (Cri.) 1203 and K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India, 2000 SCC (Cri.) 1203.

(C) That