Madhya Pradesh High Court
Saksham vs The State Of Madhya Pradesh on 21 August, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2024:MPHC-IND:24520
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W.P. No.20977, 20826 & 21361 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 21st OF AUGUST, 2024
WRIT PETITION No. 20977 of 2024
SATISH AGRAWAL S/O SHRI RAMSWARUP AGRAWAL THROUGH HIS
SON SANIDHYA AGRAWAL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ravindra Singh Chhabra, learned Senior Counsel assisted by Shri Mudit
Maheshwari, learned counsel for the petitioner.
Shri Bhuwan Gautan, learned Government Advocate for the respondents / State.
Shri Ashutosh Sharma, learned counsel for respondent No.3.
WRIT PETITION No. 20826 of 2024
SAKSHAM
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ravindra Singh Chhabra, learned Senior Counsel assisted by Shri Mudit
Maheshwari, learned counsel for the petitioner.
Shri Bhuwan Gautan, learned Government Advocate for the respondents / State.
Shri Ashutosh Sharma, learned counsel for respondent No.3.
WRIT PETITION No. 21361 of 2024
RAM PRASAD GUPTA
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 28-08-2024
10:46:16
NEUTRAL CITATION NO. 2024:MPHC-IND:24520
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W.P. No.20977, 20826 & 21361 of 2024
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Ms. Sudha Shrivastav, learned counsel for the petitioner.
Shri Bhuwan Gautan, learned Government Advocate for the respondents / State.
ORDER
Per : Vivek Rusia, J
Since identical controversy is involved in these three writ
petitions, with the consent of the parties, these petitions are analogously
heard and decided by this common order. Facts of W.P. No.20977 of 2024
are narrated hereunder.
The petitioner has filed the present petition under Article 226 of
the Constitution of India challenging the order of detention dated
30.05.2024 passed under the provisions of Prevention of Black
Marketing & Maintenance of Supplies of Essential Commodities Act,
1980 (in short ‘the Act of 1980’). The petitioner is a citizen of India,
hence, claiming protection of his fundamental right guaranteed under
the Constitution of India.
02. Facts of the case in short are as follows:-
2.1. The petitioner is a permanent resident of Indore and is the
owner of a warehouse situated in the Industrial Area, Sanwer Road,
Indore. On 15.05.2024, the officials of the Food Department inspected
the warehouse and found a large quantity of rice kept in private bags in
an EICHER truck bearing registration No.MP 09 GE 4125 and two
loading vehicles bearing registration Nos.MP 09 LR 4719 & MP 09 ZU
6084. The total quantity of rice, kept in the private bags was 415.15
quintal and the bags did not bear any seal of the Government of
Madhya Pradesh. However, the authorities suspected that the seized riceSignature Not Verified
Signed by: RAVI PRAKASH
Signing time: 28-08-2024
10:46:16
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W.P. No.20977, 20826 & 21361 of 2024
appears to be belonging to the Public Distribution System.
2.2. On 17.05.2024, a team sent the samples of rice to the M.P. State
Civil Supplies Corporation Limited for verification. In reply, the
Corporation informed that the rice seized by the Good Department on
15.05.2024, is fortified rice and is similar to the rice distributed under
the Public Distribution System. Based on the said report, Police Station
– Banganga initiated proceedings under Section 110 of the Code of
Criminal Procedure, 1973 against the petitioner.
2.3. According to the petitioner, based on the assumption that the
seized rice is fortified rice belonging to Public Distribution System, the
Junior District Supply Controller lodged an FIR at Crime No.698/2024
at Police Station – Banganga, District – Indore on 20.05.2024 against
the petitioner, his son Saksham Agrawal [petitioner in W.P. No.20826 of
2024 (H.C.)], Mehfooz driver of vehicle bearing registration No.GJ 16
AV 9146, owner of the godown Ashish, tenant of godown Ankit Tiwari,
Manoj Proprietor of Firm R.V. Export and Imran Mohammad,
Transporter under Sections 3 & 7 of the Essential Commodities Act,
1955.
2.4. The District Supply Controller vide letter dated 28.05.2024
requested respondent No.2 / District Magistrate, Indore for initiation of
detention proceeding under Section 3 of the Act of 1980, given in the
administrative order of the Principal Secretary dated 22.12.2020 bearing
No.246/PSFFood/2020. Considering the gravity of the act of the
petitioner, the District Magistrate, in the exercise of power conferred
under Section 3(2) of the Act of 1980 passed the impugned order of
detention dated 30.05.2024 for the maximum period of six months.
2.5. The petitioner has been communicated the order of detention
along with the grounds for detention after taking him into custody. TheSignature Not Verified
Signed by: RAVI PRAKASH
Signing time: 28-08-2024
10:46:16
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W.P. No.20977, 20826 & 21361 of 2024
petitioner has been informed about his right to representation before the
Central Government, Department under the Ministry of Consumer
Affairs, Food & Public Distribution (respondent No.3), Principal
Secretary, State of Madhya Pradesh, Department of Food Civil Supply
& Consumer Protection, Bhopal (respondent No.1), District Magistrate,
Indore (respondent No.2) and Advisory Board.
2.6. The petitioner submitted a detailed representation on
14.06.2024 to respondent No.1 to 3 and Advisory Board. According to
the petitioner, till date, the representation has not been decided by
respondent No.3. According to the petitioner, the representation has
been delivered to respondents No.1 & 2 on 18.06.2024, to respondent
No.3 on 19.06.2024 and respondent No.4 on 14.06.2024. According to
the petitioner, the aforesaid representation was not placed before the
Advisory Board for consideration.
2.7. Vide order dated 10.07.2024, respondent No.1 has rejected the
representation of the petitioner and affirmed the impugned order of
detention. Vide order dated 18.07.2024, the Advisory Board affirmed
the order of detention under Section 9 of the Act of 1980. Hence, the
present petition is before this Court.
03. After notice, the respondents have filed a reply by submitting
that respondent No.2 passed the impugned order of detention under
Section 3(1) & (2) of the Act of 1980. The petitioner was kept under
detention on 30.05.2024 till completion of six months. To comply with
the mandate of the Act, the matter was sent to the Advisory Board
constituted under Section 9 of the Act of 1980. The order passed by
respondent No.2 dated 30.05.2024 was affirmed by the State
Government as well as by the Advisory Board.
3.1. The respondents have further contended that the Food
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 28-08-2024
10:46:16
NEUTRAL CITATION NO. 2024:MPHC-IND:24520
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W.P. No.20977, 20826 & 21361 of 2024
Department inspected the warehouse of the petitioner situated at
Sanwer Road, Industrial Area on 15.05.2024 and found an EICHER
truck bearing registration No.MP 09 GE 4125 and two loading vehicles
bearing registration No.MP 09 LR 4719 & MP 09 ZU 6084 in the
godown, in which rice was kept which was to be for the Public
Distribution System. Respondent further stated that the driver of the
loading vehicle bearing registration No.MP 09 ZU 6084 namely
Mohammad Shakeel and driver of vehicle bearing registration No.MP
09 LR 4719 namely Nikhil Singhal were present at the time of
inspection. The petitioner was also present at the time of inspection and
was helping with the unloading of the truck. After seeing the officials of
the Food Department, the petitioner fled away from the warehouse.
Based on the seizure report, an FIR was registered against the petitioner
at Crime No.698/2024. As per the statement of Mohammad Shakeel, 43
plastic bags of rice were loaded in the vehicle by Ram Prasad Gupta
from his residence situated at Laxman Pura, Rambali Nagar, which was
delivered by him to the petitioner. There was no information to the
driver also that from whom the rice was purchased as no bill was being
provided by the petitioner for the same which itself is a matter of
suspicion.
3.2. The respondents have further stated that the driver of the
vehicle bearing No.MP 09 LR 4719 namely Nikhil Singhal has given a
statement that upon the direction of Ram Prasad Gupta, he transported
20 bags of rice to the warehouse of a petition for freight of Rs.500/- and
no bill was provided by the driver regarding the source of the rice. Both
the drivers confirmed their statement by stating that Ram Prasad Gupta
provided the rice for delivery for delivery in the warehouse of the
petitioner which shows nexus between Ram Prasad Gupta and the
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 28-08-2024
10:46:16
NEUTRAL CITATION NO. 2024:MPHC-IND:24520
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W.P. No.20977, 20826 & 21361 of 2024
petitioner.
3.3. The petitioner has committed an offence under Clause – 3(2) of
the Madhya Pradesh Public Distribution System (Control) Order, 2015.
After following the due procedure prescribed under the law and in
exercise of the power conferred under Section 3(1) & (2) of the Act of
1980, the District Magistrate has rightly passed the order of detention.
The Advisory Board, after due consideration, vide order dated
18.07.2024, in the exercise of the power conferred under Section 12(1)
of the Act of 1980 has confirmed the order of detention for six months.
It is further contended that three FIRs are already pending in respect of
similar matters. Hence, no interference is called for and the writ petition
is liable to be dismissed.
SUBMISSIONS OF PETITIONER’S COUNSEL
04. Shri R.S. Chhabra, learned Senior Counsel for the petitioner
submits that vide order dated 10.07.2024, respondent No.1 rejected the
representation of the petitioner in a cyclostyled manner without
assigning any reason, that too with a delay of 23 days and till date,
Central Government has not decided the representation. Learned Senior
Counsel further submits that the representation of the petitioner was
liable to be considered twice in view of the law laid down by the Apex
Court in the case of Rahamatullah v/s The State of Bihar reported in
(1981) 4 SCC 559.
4.1. It is further submitted that there is no final report from any
laboratory or any competent authority that the rice found in the godown
of the petitioner was fortified rice. It only appears to be belonging to the
Public Distribution System. Learned Senior Counsel submits that in the
case of Prof. Khaidem Ibocha Singh v/s The State of Manipur
reported in (1972) 2 SCC 576, the Apex Court has set aside the order of
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 28-08-2024
10:46:16
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W.P. No.20977, 20826 & 21361 of 2024
detention because the Government failed to explain the delay of 17 days
in deciding the representation.
4.2. In the case of Durga Show & Others reported in (1970) 3 SCC
696, the delay of 16 days has been treated as a long delay where a
person is being detained without trial.
4.3. In the case of Rama Dhondu Borade v/s V.K. Saraf, the
Commissioner of Police reported in (1989) 3 SCC 173, the Apex Court
has set aside the detention order, where there has been an explained
delay solely on the part of the Central Government for considering the
representation.
4.4. It is further submitted that the representation of the petitioner
was not placed before the Advisory Board. The State Government as
well as the Central Government are duty-bound to place the
representation given by the petitioner before the Advisory Board in
terms of Section 10 of the Act of 1980. Even the State Government has
rejected the representation without assigning any reason. Reliance has
also been placed upon several judgments delivered by the Apex Court
in the case of Asha Devi v/s K. Shivraj, Additional Chief Secretary, to
the Government of Gujarat, reported in (1979) 1 SCC 222, Haradhan
Saha v/s The State of West Bengal reported in (1975) 3 SCC 198,
Razia Umar Bakshi v/s Union of India reported in 1980 Supp. SCC
195, Ameena Begum v/s The State of Telangana & Others reported in
(2023) 9 SCC 587, Sarabjeet Singh Mokha v/s District Magistrate,
Jabalpur & Others reported in (2021) 20 SCC 98, Pabitra N. Rana v/s
Union of India & Others reported in (1980) 2 SCC 338, Ranbir Singh
v/s T. George Joseph, District Magistrate, Meerut & Another reported
in 1990 (Supp) SCC 54 and Naseem Bano (Smt.) v/s The State of U.P.
& Others reported in 1993 Supp (4) SCC 46.
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 28-08-2024
10:46:16
NEUTRAL CITATION NO. 2024:MPHC-IND:24520
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W.P. No.20977, 20826 & 21361 of 2024
CONTENTION OF RESPONDENTS’ COUNSEL
05. So far as the State Government is concerned, a reply has been
filed and the Government Advocate argued in support of the impugned
order of detention and prayed for dismissal of the writ petition.
06. The Central Government filed a counter affidavit in the case of
Satish Agrawal (petitioner) in support of the impugned order by
submitting that no representation of the petitioner has been received by
the Union of India. In the case of Saksham Agrawal, no such reply has
been filed by the Union of India.
WRIT PETITION NO.21361 of 2024
07. So far the Writ Petition filed by Ram Prasad Gupta i.e. writ
petition no 21361of 2024 is concerned, the facts are different as the
order of detention was passed on 30.05.2024 for a period of six months
which has been affirmed by the Advisory Board vide order dated
18.07.2024.
7.1. In this case, the petitioner has not submitted any representation
against the impugned order of detention. The petitioner has filed this
petition solely on the ground that he has been implicated only on the
basis of the statement of Mohammad Shakeel, who was the driver of a
loading vehicle bearing registration No.MP 09 ZU 6084 that 43 plastic
bags of rice were loaded by this petitioner from his house situated at
Laxman Pura, Rambali Nagar. A similar statement was given by the
driver of the loading vehicle bearing registration No.MP 09 LR 4719
namely Nikhil Singhal that 20 bags of rice were loaded by this
petitioner. The petitioner has filed the affidavit of these drivers in this
petition that they did not disclose the name of the present petitioner,
therefore, illegal detention is liable to be quashed.
7.2. The respondents / State filed a reply by submitting that the
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 28-08-2024
10:46:16
NEUTRAL CITATION NO. 2024:MPHC-IND:24520
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W.P. No.20977, 20826 & 21361 of 2024
Advisory Board vide order dated 18.07.2024 has confirmed the
impugned detention order for the period of six months. The petitioner
was also involved in procuring the rice by way of transportation and
storing meant to be sold for the Public Distribution System.
APPRECIATION & CONCLUSION
08. The order of detention was passed by the District Magistrate in
exercise of the power conferred under Section 3(1) & (2) of the Act of
1980 for the period of six months. The aforesaid order as well as the
ground of detention was communicated to the petitioner on 30.05.2024.
The petitioner submitted representation to the State Government by way
of Registered A.D. Post on 14.06.2024, i.e. after 15 days from the date
of order of detention. As per the Track Consignment Report, it was
delivered on 18.06.2024. The State Government granted approval of the
detention order dated 30.05.2024 by issuing an order dated 07.06.2024
(Annexure-R/6). Thereafter, the Advisory Board, after due
consideration, in the exercise of the power conferred under Section
12(1) of the Act of 1980 has confirmed the detention order for a period
of six months.
09. The representation of the petitioner was forwarded to the State
Government, comments were obtained from the District Magistrate and
after examining the same, the State Government rejected the
representation vide order dated 10.07.2024.
10. The sole contention of Shri R.S. Chhabra, learned Senior
Counsel is that there is an unexplained delay in deciding the
representation of the petitioner i.e. from 18.06.2024 to 10.07.2024,
therefore, the impugned order is liable to be set aside. In the reply filed
by the State Government, the delay in deciding the representation has
not been explained. The Central Government has not decided the
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 28-08-2024
10:46:16
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W.P. No.20977, 20826 & 21361 of 2024
representation and communicated to the petitioner.
11. The Apex Court in the case of Sarabjeet Singh Mokha (supra)
has considered the importance of deciding the representation
expeditiously and unexplained delay on the part of the State
Government in deciding the representation in paragraph – 47 and the
same is reproduced below:-
“43.By delaying its decision on the representation, the State
Government deprived the detenu of the valuable right which
emanates from the provisions of Section 8(1) of having the
representation being considered expeditiously. As we have
noted earlier, the communication of the grounds of detention
to the detenu “as soon as may be” and the affording to the
detenu of the earliest opportunity of making a representation
against the order of detention to the appropriate government
is intended to ensure that the representation of the detenu is
considered by the appropriate government with a sense of
immediacy. The State Government failed to do so. The
making of a reference to the Advisory Board could not have
furnished any justification for the State Government to not
deal with the representation independently at the earliest.
The delay by the State Government in disposing of the
representation and by the Central and State Governments in
communicating such rejection strikes at the heart of the
procedural rights and guarantees granted to the detenu. It is
necessary to understand that the law provides for such
procedural safeguards to balance the wide powers granted to
the executive under the NSA. The State Government cannot
expect this Court to uphold its powers of subjective
satisfaction to detain a person while violating the procedural
guarantees of the detenu that are fundamental to the laws of
preventive detention enshrined in the Constitution.”
[Emphasis Supplied]
12. The Apex Court has considered the effect of non-
communication of order by the competent authority in paragraph 53 and
the same is reproduced below:-
“53.At this point, it would also be relevant to mention that
this Court in Union of India v. Saleena56, considered the
issue of whether non-communication of the order rejecting
the representation by the competent authority wouldSignature Not Verified
Signed by: RAVI PRAKASH
Signing time: 28-08-2024
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W.P. No.20977, 20826 & 21361 of 2024
invalidate or vitiate the order of detention. In the facts of that
case, though the order of the competent authority rejecting
the detenu’s representation was not communicated to him,
the Under Secretary had informed the detenu of the outcome
of the decision. The Court observed that the procedural
safeguards under Article 22(5) of the Constitution do not
require a communication of the order rejecting the
representation by the competent authority or incorporation of
the order passed by the competent authority in the order of
communication to the detenu. Without commenting on the
merits of Saleena (supra), we note that the decision was
limited to the issue framed which relates to whether an order
rejecting the representation must be mandatorily
communicated to the detenu by the competent authority.”
13. The Apex Court has set aside the order of detention only on
aforesaid two grounds. However, no period for deciding the
representation has been prescribed in the Act of 1980 but looking at the
period of detention i.e. only 6 months, one month time to decide the
representation is on the higher side and the same is liable to be
explained. In absence of a valid explanation, it cannot be said that the
representation has been decided expeditiously. The Government of M.P.
has not decided the representation expeditiously and did not give any
explanation in return.
14. As of today, there is no conclusive finding or report by any
laboratory to establish that the rice seized from the vehicle parked
outside the godown of the petitioner is fortified rice. The State
Government has not filed any such report along with the return. The
FIR under Section 3/7 of the Essential Commodities Act has already
been registered against the petitioner, in which he will prove his
innocence, but as on today, there is no reason to keep the petitioner
under detention after the expiry of four months.
15. In view of the aforesaid and following the law laid down by the
Apex Court in the case of Sarabjeet Singh Mokha (supra), the
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 28-08-2024
10:46:16
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W.P. No.20977, 20826 & 21361 of 2024
impugned order of detention dated 30.05.2024 is hereby quashed, so far
as petitioners of W.P. Nos.20977 of 2024 & 20826 of 2024 are
concerned.
16. So far as W.P. No.21361 of 2024 is concerned, although there is
no representation but only on the basis of statements of the drivers, this
petitioner has been subjected to detention under the Act of 1980. Apart
from this, no material has been collected to connect this petitioner with
this crime. Hence, the period of detention is reduced to the period
already undergone by this petitioner.
17. With the aforesaid, these Writ Petitions allowed & stand
disposed of.
Let a copy of this order be kept in the connected writ petitions
also.
(VIVEK RUSIA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
Ravi
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 28-08-2024
10:46:16