The obligation of the District Magistrate to report the order of preventive detention to the State Government 'forthwith' and the impact of delayed communication on the validity of the order.

ORDER

Dwarka Dhish Bansal, J. - In the present petition, powers of judicial review under Article 226 of the Constitution of India is invoked to assail the legality, validity and proprietary of order of preventive detention passed by the District Magistrate, Bhopal on 25.06.2021 by invoking Section 3 (1) of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (for brevity "Act of 1980").

2. The petitioner has challenged the order dated 25.6.2021 (Ann.P.1) with the contention that he was served with the show cause notice dated 18.6.2021regarding certain irregularities in procedure and distribution of the essential commodities, in pursuance of which he submitted the reply on 1.7.2021, and even prior to the cut off date the order was passed. It is also contented that FIR was also registered against the petitioner under Section 3/7 of Essential Commodities Act at Crime No.225/2021. Upon filing an application for grant of anticipatory bail, the same was allowed by this Court vide order dated 30.11.2021 passed in M.Cr.C.No.48806/2021. It is further contended that upon appearing before the concerning police station on 7.12.2021 for furnishing the bail the police arrested the petitioner on the same day i.e. on 7.12.2021 and sent him to jail.

3. After filing of the return by the State government the petitioner prayed for and was permitted to amend the writ petition vide order dated 2.2.2022 whereby the petitioner has also challenged the order dated 6.7.2021 (Ann.P.3) and order dated 12.7.2021 (Ann.P.4) with the contention that the petitioner came to know about the said orders for the first time after filing of this petition.

4. Placing reliance on the orders passed by this Court on 14.12.2021, 22.12.2021 and 21.1.2022 in W.P.No.16947/2021, W.P.No.27038/2021 and W.P.No.305/2022 respectively, lot many grounds have been raised by learned counsel for petitioner in support of challenge to the aforesaid orders but the ground which appeals to this Court is that the order of preventive detention was passed by the District Magistrate on 25.6.2021 but the matter was sent to the State Government on 5.7.2021 for approval.

5. Learned counsel for State submits that communication of the aforesaid order could not be made to the petitioner and since the petitioner was absconding and could only be physically detained/arrested on 7.12.2021, the District Magistrate could only thereafter forward the case along with grounds of detention to the State Government for approval under Section 3(3) of the Act of 1980.

6. For ready reference and convenience, Section 3 of the Act of 1980 is reproduced below:-

"3. Power to make orders detaining certain per sons.-

(1) The Central Government or a State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of the commodities essential to the community it is necessary so to do, make an order directing that such person be detained.

Explanation.-For the purposes of this sub-section, the expression "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community " means-

(a) committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955 (10 of 1955) or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in, any commodity essential to the community; or

(b) dealing in any commodity-

(i) which is an essential commodity as defined in the Essential Commodities Act, 1955 (10 of 1955), or