Dilipbhai Babubhai Kapadia vs District Magistrate Surat and Others

G.T. Nanavati, J.—By this petition, the petitioner challenges his detention, pursuant to the order dated 20-9-1983, passed by the District

Magistrate, Surat, u/s 3 (2) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereafter

referred to as ""the Act"").

On 8-5-1983 one Umerbhai informed the District Magistrate, Surat that Dilipbhai Babubhai Kapadia, the detenu, was illegally receiving cement

from the contractors executing the works of the Irrigation Department of the Government and selling the same in black market. The District

Magistrate, after getting the said information verified and on being satisfied that the petitioner was illegally dealing in cement and his activity was

prejudicial to the maintenance of supplies of commodity essential to the community, passed the impugned order of detention with a view to

preventing him from carrying on the said prejudicial activity.

First contention raised by Mr. Patel is that there was unreasonable delay on the part of the State Government in considering the representation

made by the petitioner; and, that has rendered the continued detention of the petitioner illegal. He pointed out that the petitioner had made the

representation against the order of his detention on 29-9-1983. He further pointed out from the reply filed by the State that the representation was

not considered till 6-10-1983. He submitted that this delay is not properly explained and should be regarded as unreasonable.

On the other hand, it was urged by the learned Additional Public Prosecutor that the delay of six days cannot be regarded as unreasonable. He

submitted that after a representation is received, it is required to be processed at various levels; and that process is bound to take some time. He

also submitted that six days'' time was taken in processing the representation as explained in the reply affidavit. For that reason also he submits that

the delay should not be regarded as unreasonable.

It is now well-settled that the representation made by a detenu is required to be considered by the State Government with utmost expedition. In

other words, it must be taken up for consideration as soon as the same is received and dealt with continuously until a final decision is taken and

communicated to the detenu. (See Harish Pahwa Vs. State of U. P. and Others, It is also true that the time imperative can never be absolute or

obsessive and that occasional observations made by the Supreme Court that each day''s delay in dealing with the representation must be

adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is an arithmetical

formula, the slightest breach of which must result in the release of the detenu, as observed by the Supreme Court in Jayantilal K. Katakia and

Another Vs. P. Govindan Nair and Another, It is also true that when a representation is made to the Government, it is required to be dealt with at

various levels and that process may consume some time. But any slackness in this behalf not properly explained would amount to denial of the

protection conferred by the statute and would result in invalidation of the order. (See Vijay Kumar Vs. State of Jammu and Kashmir and Others,

In view of this settled legal position, it was incumbent upon the respondent-state to explain how it dealt with the representation till it came to be

rejected. Its reply in this behalf is as vague as vagueness could be. What is stated by way of an explanation on behalf of the State is as under:

I say that the petitioner has made his representation to the State Government on 29th of September, 1983. I say that it was processed by the

concerned officer and the decision was taken in the matter on 6th of October, 1983. I say that the reply of the decision taken at the Government

level was sent to the petitioner on 7th October, 1983. I, in the circumstances of the case, submit and say that the representation of the petitioner

was considered within reasonable time.

It is not at all explained how the representation was dealt with at various levels from 29-9-1983 to 6-10-1983. It is neither explained in the

affidavit, nor was any material produced before us to show how the file moved from one officer to another after the representation was received

and till it was disposed of. In absence of any valid explanation for the delay in considering the representation, it will have to be held that the

Government was guilty of delay in discharging its obligation and that has rendered the continued detention of the petitioner illegal.

As the petitioner is entitled to succeed on this point alone, it is not necessary to deal with other contentions raised on his behalf by Mr. Patel.

In the result, this petition is allowed. A. writ of mandamus shall issue directing the respondents release the petitioner forthwith unless he is required

to be detained in connection with some other case. Rule is made absolute with no order as to costs.