Bhanvarlal Mogchand Jain vs State of Gujarat and Others

A.L. Dave, J.—The petitioner is the detenu detained under the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 on 9.9.2010 by the order passed by District Magistrate, Ahmedabad on the same date.

By this petition, the detention is challenged mainly on three grounds. The first is that representation dated 13.9.2010 made to the Central Government is not considered till date. That has affected the detenu''s right of audience. The second ground is that the grounds of detention refer to offence registered against the detenu vide CR No. II-3240 of 2010 dated 4.9.2010, but does not refer to the factum of arrest of the detenu and his subsequent release on bail. The third ground is that the detaining authority has in his grounds of detention observed that the detenu is likely to indulge in similar activities without considering the fact that the licence of the detenu was suspended much prior to the registration of offence on 4.9.2010 and, therefore, there was no chance of the detenu indulging in similar activities and, therefore, there is non-application of mind.

Learned advocate Mr Thakkar for the petitioner has reiterated the above stated three grounds. Learned AGP Mr Shah and learned Central Government Counsel Mr Shaikh have opposed the petition.

Learned Central Government Counsel Mr Shaikh submitted that the representation could not be decided as certain material information sought from the State Government was not received by the Central Government.

Factually, it is true that the representation dated 13.9.2010, received by the Central Government on 17.9.2010, is not considered by the Central Government. The reason advanced by the Central Government is that the requisite information is not received from the State Government. Assuming that to be true, the fact remains that the petitioner''s right to be heard is adversely affected and the representation remains undecided from 17.9.2010 till date and in view of the decision in the case of Harish Pahwa Vs. State of U. P. and Others, the detenu''s right of making a representation or of being heard is violated, which would vitiate the detention.

Similarly, non-reference to the factum of arrest and release on bail of the detenu in respect of CR No. II-3240 of 2010, though referred to in the grounds of detention, would clearly reflect non-application of mind, so also, the observation that the petitioner is likely to indulge in similar activities in face of the fact that the petitioner-detenu''s licence has been suspended prior to the registration of offence vide CR. No. II-3240 of 2010. This non-application of mind would vitiate the order.

In view of the above circumstances, the petition deserves to be allowed and the same is allowed. The impugned order of detention passed by respondent No. 2 District Magistrate, Ahmedabad dated 9.9.2010 detaining detenu- Bhanvarlal Mogchand Jain is hereby quashed and set aside. The detenu be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. No costs. Direct service is permitted.