This matter is placed before the Hon’ble Chief Justice for constitution of the Larger Bench to consider the aforesaid questions along with W.P. No.11876/2021 and 11548/2021 for analogous hearing by HIGH COURT OF MADHYA PRADESH AT INDORE in the case of JAGDISH SALVI V. THE STATE OF MADHYA PRADESH through HON’BLE JUSTICE VIVEK RUSIA
FACTS OF THE CASE
The facts of the case are that the detenue Vijay Salvi S/o Jagdish Salvi at the relevant point of time, was working in Fair Price Shop, Amla. The present petition is filed through his father Jagdish Salvi. On 30.12.2021, police searched a loading vehicle and found bags of rice loaded in it. The driver was apprehended and interrogated. He disclosed that he was transporting rice bags from Government Fair Price Shop, Amla to Government Fair Price Shop, Arjunkhedi, Tehsil Badnagar, District Ujjain, on instructions of the Vijay Salvi. Junior Supply Officer has conducted an enquiry of Primary Agriculture Credit Co-operative Society, Amla, an allottee society under Madhya Pradesh Public Distribution System (Control) Order, 2015 and submitted a report dated 06.01.2022. On the basis of said report, the Collector (Food), directed for registration of FIR against the detenue and driver Gokul S/o Shri Kailash Rathore. The FIR was registered at crime No.12 of 2022 on 07.01.2022. A show-cause notice dated 13.01.2022 was also issued to the detenue under Clause 16 of the Distribution Order, 2015 because of the recovery of 66 bags of rice in vehicle No.MP-13-GB-0179. The detenue submitted a detailed reply to Sub Divisional Officer, Badnagar. Before the final order could be passed on show-cause notice, on the reply submitted by the detenue, he was served a detention order dated 18.01.2022 ordering him to be detained and kept in Central Jail, Ujjain for a period of six months from the date of actual detention. Along with the copy of the order dated 18.01.2022, the grounds for detention were also supplied to the petitioner. The detenue was detained on 19.01.2022 and a detention order and grounds were served upon his father on 20.01.2022. The detenue submitted a detailed representation to (i) District Magistrate, Ujjain, (ii) Principal Secretary, Department of Food Civil Supplies and Consumer Protection Department, Vallabh Bhawan, Bhopal (iii) Secretary, Ministry of Home Affairs, Government of India, New Delhi & (iv) The Advisory Board on 27.01.2022. Hence, the present petition before this Court.
In the present case, this Court has found that no order of confirmation has been issued by the State Government as required under Section 12(1) of Black-Marketing Act, 1980, hence, vide order dated 06.04.2022, Additional Advocate General was directed to address on this issue. Under Section 3(1) of the Black-Marketing Act, 1980, the Central Government or a State Government or any officer of the Central Government, not below the rank of a Joint Secretary empowered for the purpose of this section and any officer not below the rank of Secretary of State Government, if satisfied, with respect to any person that he is liable to be detained make an order directing that such person be detained. Under Section 3(2) of the Black Marketing Act, 1980, District Magistrate or Commissioner of Police, wherever they have been appointed may also, if satisfied as provided in sub-section (1), exercise the powers to pass an order of detention of any person and after passing such order under subsection (2), he shall forthwith report the fact to the State Government with a ground on which the order has been made and no such order shall remain in force for more than twelve days from date of passing the order. Under sub-section (4), when an order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made. Under Section 8 of the Black Marketing, Act, 1980 mandates, the disclosure of grounds of order of detention to the person affected within the period of 5 days and not later than ten days and shall afford an opportunity of making a representation against the order to the appropriate Government. Section 9 of the Black-Marketing Act, 1980 provides constitution of Advisory Boards, which shall consist of three persons, out of which one is or has been judge of High Court to be a chairman. As per Section 10 of Black-Marketing Act, 1980 in every case where a detention order has been made under this Act, the appropriate Government, shall within three weeks from the date of detention of a person under the order, place it before the Advisory Board. Section 11 of the Black-Marketing Act, 1980, prescribes the procedure to be followed by the Advisory Boards. Section 12 of Black-Marketing Act, 1980, provides action upon the report of the Advisory Board. Under Section 12(1) of the Black-Marketing Act, 1980, in any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. Section 13 of the Black-Marketing Act provides a maximum period of detention which shall be six months from the date of detention. The Government grants approval under sub-section (4) of Section 3 of the Black-Marketing Act and forwarded it to the Central Government together with all documents and grounds within seven days. Thereafter, it is mandatory for the Central and State governments to constitute an Advisory Board and place the matter before the Advisory Board. The role of the Advisory Board is only to give an opinion on whether the detention order is correct or not. As to whether or not there is sufficient cause for the detention of the person concerned. After completing all these procedures, the confirmation by the appropriate Government is mandatory under Section 12 of the Black-Marketing Act, 1980 and while confirming the order, the State Government shall fix the period of detention. Section 12(1) of the Black-Marketing Act, 1980 also gives the power to continue the order of detention but the period shall not exceed six months. The basic reason, in opinion for granting the benefit of interim release in this matter and therefore, the detenue deserves interim release and there is no order of confirmation passed by the State Government under section 12(3) of the Act. Accordingly, it is directed that on furnishing a personal bond of Rs.50,000/- with a solvent surety of the like amount to the satisfaction of the Principal Registrar of this Court, the detenue be released from the detention with the further direction to appear before the Registry of this Court on 26.05.2022 and on such subsequent dates, as may be fixed by the office in that behalf, till final disposal of the present writ petition. The Registry of this Court is directed to place the matter before the Hon’ble Chief Justice forthwith so that these questions be answered at the earliest.
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JUDGEMENT REVIEWED BY SHREYA NIDHI