Judgment:
ORDER
S.K. Keshote, J.
1. The petitioner by this petition under Article 226 of the Constitution of India praying for quashing and setting of the order No. DTN/ECA/3/2000 dated 29-7-2000 passed by the respondent No. 3, District Magistrate, Dohod under Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. Challenging the order the learned counsel for the petitioner raised following contentions :-
(i) There is a considerable inordinate unexplained delay in deciding the representation of the petitioner. It is contended that there is delay of 26 days in deciding the representation of the petitioner for which no explanation whatsoever has been given out by the respondent No. 1. In support of this contention the learned counsel for the petitioner placed reliance on the decisions of the Apex Court in the case of Mahinuddin v. District Magistrate, Beed, AIR 1987 SCC 1977, Rumana Begam v. State of Andhra Pradesh, 1993 Supl. (2) SCC 341 and Rajammal v. State of Tamil Nadu, AIR 1999 SC 6484 : 1999 Cri LJ 826.
He further placed reliance on the unre-ported decision of this Court Coram : M/s. J.P. Desai and N.B. Patel, JJ. in Special Civil Application No. 292 of 1988 decided on 13-7-1988 and another decision of this Court Coram : M/s. B.S. Kapadia and R.D. Vyas, JJ. in Special Criminal Application No. 883 of 1993 decided on 14-2-1994.
(ii) The petitioner is aged about 65 years, suffering from many ailments. The petitioner was in the service of the society and his services were brought to an end. The shop is also closed and all card holders are shifted and his continued detention is unwarranted. Reliance has been placed in support of his contention by the learned counsel for the petitioner on the decision of the Apex Court in the case of Manilal Manoharbhai Patel v. State of Gujarat, 1999 SCC (Cri) 1321.
(iii) There is total non-application of mind in the matter by the detaining authority. The petitioner has not committed any breach of terms and conditions of that license. Elaborating his contention the learned counsel for the petitioner read out grounds (h) and (i) of the Special Civil Application.
(iv) No complaint under Essential Commodities Act has been filed against the petitioner. Elaborating this contention the learned counsel for the petitioner has read out para No. (g) of the Special Civil Application. The detaining authority has not passed the order of the detention against the main responsible persons i.e. Chairman and other office-bearers of the Society.
(v) The documents supplied to the petitioner are illegible. It is submitted that the documents at pages Nos. 23, 25, 27, 29, 33, 45, 47 and 151 are illegible. In support of this contention the learned counsel for the petitioner placed reliance on the following decisions:-(1998) 1 Guj L R 710 Harsukhbhai Hansrajbhai Kachhadiya v. Union of India.
2. Learned counsel for the respondents supported the order passed by the detaining authority.
3. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have gone through the Special Civil Application, reply-affidavits filed by the detaining authority, Union of India and State of Gujarat.
4. During the course of arguments, the learned counsel for the petitioner impressed upon Court that the petitioner is not only on old man but the society has terminated his services also. The learned counsel for the petitioner further submitted that the petitioner is not going to challenge the order of termination of his services by the society as he is appointed few years back and the shop has already been closed down. On 17-1-2001 this Court directed to the counsel for the petitioner to file affidavit of the petitioner whether he has challenged the order of the termination of his service or not or if it is not challenged so far whether in future he has any plan to challenge that order or not. The petitioner is detained in District Jail, Junagadh. The learned counsel of the petitioner filed affidavit of the son of the petitioner sworn on 20-1-2001. In this affidavit the son of the petitioner stated that his father is 65 years old and suffering from many ailments which are heart problems and deaf by both ears. The services of his father were terminated by oral order by the Chairman of the society. He further stated that he was informed by his father that he is not in a position to serve more because of ill-health and he wanted to pass time without having any job and he is not going to challenge that order. In the affidavit it is further stated that the Co-operative society has closed down the shop and all card holders are shifted to another fair price shop. The learned counsel for the petitioner also filed writing of the petitioner himself dated 21-1-2001 duly attested by Jailor, District Jail, Junagadh. In this writing the petitioner stated that he is 65 years old suffering from many ailments viz. heart problem and deaf by both ears. He also reiterated that he is not in a position to serve more because of his ill-health. He made a categorical statement that he does not want to challenge the said order of the Chairman of the Society under which his services are brought to an end. It is also stated that co-operative society has closed down the shop and all card holders are shifted to another fair price shop.
From these two affidavits the facts stated therein are uncontroverted, I find that the petitioner has made a categorical statement that he is not going to challenge the order of the society under which his services were orally terminated. He is aged 65 years, suffering from many ailments viz. heart problems and deaf by both the ears and the society is closed down the shop and all the card holders have been shifted to another fair price shop. The detention of the petitioner was ordered for 6 months and that period of six months he is completing within few days.
5. From the reply of the detaining authority I find that the petitioner was appointed by the Chairman of the society in the month of January, 1997 on monthly fixed salary of Rs. 1500/-. It is the case where the petitioner has been ordered to be detained by the detaining authority for alleged activities of black marketing the essential commodities. This fair price shop where the petitioner was employed run by a co-operative society and it is difficult to believe even by a person of ordinary prudence that without connivance of the Chairman and/or other office-bearer of the society the petitioner could have been indulged in all these alleged activities. The detaining authority in the reply made a reference to the admission made by the petitioner in his statements recorded on 13-2-2000 and 10-7-2000 that he himself responsible for irregularities in conduct of business at the fair price shop. The detaining authority has also made reference to the fact that the Chairman of the society Shri Chagan Bhabore has also supported these facts. I am constrained to observe and at pains to state that the detaining authority in such matters appears to only concern with statistical datas and not with the substance. Naturally the Chairman has to support, endorse and affirm the statements made by the petitioner as it suits and supports him. Without the connivance of the Chairman and/or other office bearers of the society at the cost of repetition, it is to be stated that whatever irregularities alleged to have been committed by the petitioner was not possible. It is easy to state but difficult to believe that the petitioner himself was the only person running fair price shop. This shop was of the society and leaving apart all other facts certainly the Chairman and members of the society are equally responsible for all these illegalities. The fair price shop was sanctioned in favour of the co-operative societies by the Government having in mind that in the fair and equal distribution of the essential commodities there may not be irregularities, illegalities and malpractice. That does not mean that the chairman of the society and other office bearers to show total disconcert and disregard to this confidence reposed by the sanctioning authority of the fair price shop in the society. Leaving apart all the facts that it may not by possible for the petitioner to indulge in all such irregularities as alleged without the connivance of the chairman and other office-bearers of the society otherwise also for these irregularities which were found at the fair price shop those are equally accountable for it. But possibility of extending undue favour to such class of persons by detaining authority cannot be ruled out in the present scenario of the country. Blaming for these illegalities and malpractices to the petitioner only and to go to the extent of detaining him under the Act is difficult to appreciate. It is not the case of the respondents that any action has been taken against the society for all these alleged irregularities, bunglings and malpractices which were found to be committed at the shop. For all these alleged irregularities, bunglings and malpractices the criminal prosecution could have also been launched. But the detaining authority has not considered all these aspects and felt contended and satisfied to detain the petitioner. In the facts of this case there are all possibilities that all this would have been done to save the chairman and other office bearers of the society.
6. In the facts and circumstances of this case I am satisfied that there is total non application of the mind of the detaining authority in the case and total perverse approach to felt content and satisfied by detaining only an employee, a old man aged 65 years appointed in January, 1997 on the consolidated salary.
7. Looking to the alleged irregularities, bunglings and malpractices found at the shop run by the co-operative society attempts Oshould have been made by the District Collector to find out the realities. He should not have proceeded in such a serious matter by detaining only the employee and scot-free all other persons namely chairman and other office bearers of the society who may also be equally responsible for all these alleged irregularities, bunglings and malpractices. It is to be stated at the cost of repetition that without their connivance it is difficult to accept that alleged irregularities, bunglings and malpractices possibly could have been done by the petitioner alone.
8. I find sufficient merits in the contentions of the learned counsel for the petitioner re. delay in deciding representation of the petitioner by the State Government. In the affidavit-in-reply filed by the respondent No. 1 possibly attempt has been made by it to confuse the issue. But from facts admitted with emerge from the affidavit-in-reply I am satisfied that there is an inordinate delay in deciding the representation of the petitioner dated 18-9-2000. This representation dated 18-9-2000 was addressed to the concerned Additional Chief Secretary of State of Gujarat. It is admitted during the course of arguments by the learned counsel for the respondents that same was received by the despatch clerk in the office of this officer. The respondent No. 1 has come up with the case that this representation was received by Special Branch of Food, Civil Supplies and Consumer Affairs Department on 11 -10-2000. This is clearly a deliberate attempt on the part of the officer who sworn the affidavit-in-reply on behalf of the respondent No. 1 not to disclose this material fact that on 20-9-2000 this representation has been received in the office by receipt clerk. The explanation furnished that as the subject was not mentioned on the representation same was sent to other branch of the Department by mistake by the despatch section is difficult to accept more Particularly in the detention matter where does arise the question of personal liberty of a citizen. The original representation of the petitioner has not been produced with the affidavit-in-re-ply by the respondents to show and prove what it is contended. This is nothing but only an explanation for the sake of explanation. Affidavit of the concerned clerk has also not been filed and only on the basis of what it is stated by officer, Deputy Secretary it is difficult to believe this story what to say to accept it.
Yet there is another reason for which this explanation furnished by the respondents cannot be accepted. The Deputy Secretary verified the contents of his affidavit to be true to the best of his knowledge and information derived from the official record. This referred official record has also not been produced nor enclosed to the affidavit-in-reply. The representation of the petitioner has been decided after 26 days of receipt thereof and this delay in deciding the same itself is a good ground to allow this petition. The respondent No. 1 has not furnished any satisfactory explanation of this inordinate delay made in deciding the representation. Not only this the respondents are further failed to furnish any explanation whatsoever for the delay made by the Hon'ble Minister of Civil Supplies to clear the file. This file was admittedly sent to him on 13-10-2000 but he cleared the same on 16-10-2000. For this delay no explanation has been furnished. This unexplained delay is also another good ground for acceptance of this Special Civil Application.
In one case relief upon by the counsel for the petitioner the delay for a period of six days made in deciding the representation was not explained and on this ground their Lordships of Hon'ble Supreme Court held that the order of detention of the detenu vitiated. In the decision given in Special Civil Application No. 292 of 1988 there was a delay of 4 days and it was taken to be serious by the Court and detention order has been quashed and set aside. In the decision given in Special Civil Application No. 883 of 1993 there was delay about 7 days and it was also considered to be fatal and relief has been granted. Other grounds raised by the learned counsel for the petitioner except the ground re. supply of illegible documents are covered in the discussion made in the earlier part of the judgment. Re. contention of supply of illegible documents to the petitioner it is suffice to say that the learned counsel for the petitioner is unable to make out any case on merits. Firstly it is to be stated that the petitioner has not filed along with Special Civil Application the original documents which were sent to him by the detaining authority. He filed xerox copy of the documents. There are all possibility of manipulation and tampering with the documents for the purpose of making a ground of challenge to the order of detention. On the basis of xerox copies of the original document, this plea raised of supply of illegible documents cannot be entertained. Otherwise also, if we go by the xerox copy of the documents at page No. 23 I find this document is legible. Same is the case with the documents at pages Nos. 25, 27, 29, 33, 45 and 47. It is to be stated that the document at pages Nos. 45 and 47 is the representation which has been sent by the petitioner to Additional Chief Secretary. That is his own document and it would not have been the part of compilation of the documents sent to the petitioner by detaining authority. The document at page No. 53, document at page No. 53 are also perfectly legible. So far as the alleged documents at pages Nos. 55, 69, 103, 111, 112, 143 and 151 are concerned the same are not on the record and as such this contention re. these documents is wholly misconceived and misplaced.
9. In the detention matters if we go by the statistical data in substantial number of cases detenus get the benefit of delay which is made by the authorities in deciding the representation. Manifold causes may be there of delay in deciding the representation of the detenu against the detention order. Some of the causes are of a nature which can be created at the instance of the detenu for his own benefits. It is unfortunate that in the country in the Government Offices everything is possible to be manipulated by the connivance of the officers/employees by the citizen. The reason for this may be deterioration in the values, character and approach of the employees/officers as a whole. In this case the respondent No. 1 has not come up with all the details. It appears to be a case where an attempt to twist the facts of the case has been made by the officers of this impersonnel machinery State of Gujarat. The material documents and record have not been produced along with reply. In the facts of this case I consider it necessary to give guidelines both to the detenu and authorities to be followed in future so that possibility of reoccurrence of such delay in deciding the representation may not be there and secondly to decrease the chances of possible manipulation by the detenu in such matters with the connivance of the officers/employees of the department concerned. These are:
(i) The representation against the detention order is to be sent in a cover by the detenu to the authority concerned by registered post A.D.
(ii) On the Top of the cover in red ink the detenu or his advocate or representation or relation whosoever sending this representation to give details viz.
(a) No. of the detention order,
(b) the authority who made the order,
(c) jail at which he is under detention, and
(d) this cover is to be addressed to authority/officer to which it is sent for decision. Designation of the officer concerned has to be underlined by red ink.
10. The Post Master General to issue necessary instructions to the concerned postman to deliver the said cover to the officer to whom it is addressed personally. The officer concerned has to make a note on the cover or on the representation the date and time on which he received it. On receipt of the representation of the detenu the officer concerned to take prompt action thereon. He himself to process it and decide. It is made clear that in the matter of the representation of the detenu against the detention order this inherited bureaucratic methodology imbued with the note making, filing-pushing, and passing-on-buck ethos should not be adopted.
11. These guidelines are to be scrupulously followed by the detenu, postal authorities and authority or officer to which the representation has been sent.
12. In the result, this Special Civil Application succeeds and the same is allowed. The order of detention dated 28-7-2000 of the petitioner is quashed and set aside and the petitioner Taiyabji Fidahusen Challawala, be set at liberty forthwith, if he is not required in any other case. Rule is made absolute. No order as to costs.