Madhya Pradesh High Court
Irfan Sheikh Through Wife And ... vs The State Of Madhya Pradesh on 20 February, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:4911
1 WP-12476-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 20th OF FEBRUARY, 2025
WRIT PETITION No. 12476 of 2023
IRFAN SHEIKH THROUGH WIFE AND REPRESENTATIVE SMT.
RUKHSAR BEE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Rohit Kumar Mangal, learned counsel for the petitioner.
Shri Shrey Raj Saxena, learned Deputy Advocate General for the
respondents / State.
ORDER
Per: Justice Vivek Rusia The petitioner has filed the present petition under Article 226 of the Constitution of India challenging the validity of order dated 19.05.2023 passed by the District - Magistrate, Indore, whereby the petitioner was directed to be detained for a period of six months under Section 3 of the Prevention of Black Marketing & Maintenance of Supplies of Essential Commodities Act, 1980 (in short 'the Act of 1980'). This petition is also against the order dated 25.05.2023, whereby the order of detention has been affirmed by the State Government and order dated 06.06.2023 by which petitioner's representation has been rejected. The detention period has been Signature Not Verified Signed by: RAVI PRAKASH Signing time: 24-02-2025 7.13.20 PM NEUTRAL CITATION NO. 2025:MPHC-IND:4911 2 WP-12476-2023 undergone by the petitioner, but still he wants to assail the impugned order on merit.
02. The facts of the case, in nutshell, are that the police apprehended a loading auto bearing registration No.MP 09 LR 7344, in which 19 commercial gas cylinders man belonging to HPCL, 28 emptied commercial gas cylinders belonging to HPCL, 02 emptied commercial gas cylinders belonging to BPCL and 01 commercial gas cylinder weighing 05 kg weight belonging to HPCL Company and 05 emptied gas cylinder for industrial uses belonging to HPCL, one electronic gas refill machine with connectors and weighing machines were seized. The petitioner, who was found driving the loading auto, which is registered in the name of his father. Therefore, an FIR under Section 3/7 of the Act of 1980 was registered for transportation and storage of essential commodity i.e. LPG gas cylinder.
03. Vide letter dated 02.05.2023, the District Supply Controller sent this information about the above incident to the District Magistrate and on basis of this material, the District Magistrate has passed an order of detention under Section 3(2) of the Act of 1980, for sending to the petitioner under detention for a period of six months.
04. The petitioner is assailing the impugned order of detention firstly on the ground that respondent No.2 does not have jurisdiction to pass the order of detention under the Act of 1980, bacause of implementation of Commissionary System in the City of Indore w.e.f. 09.12.2021. Secondly, the petitioner has pleaded that neither respondent No.2 has jurisdiction to mention the period of detention nor he is having power to pass an order of Signature Not Verified Signed by: RAVI PRAKASH Signing time: 24-02-2025 7.13.20 PM NEUTRAL CITATION NO. 2025:MPHC-IND:4911 3 WP-12476-2023 detention under the Act of 1980 for more than 12 days as provided under Section 3(3) of the Act of 1980.
05. Shri Rohit Mangal, learned counsel appearing for the petitioner submits that under Section 3(2) of the Act of 1980, the Commissioner of Police, appointed in the City of Indore is only authorized to pass an order of detention. In the City of Indore, Police Commissioner System has introduced vide notification dated 09.12.2021. Hence, District Magistrate has no jurisdiction to pass an order of detention under the Act of 1980.
06. We do not find any substance in the aforesaid submission. Section 3(2) of the Act of 1980 is reproduced below:-
''3. ***** (2) Any of the following officers, namely :-
(a) District Magistrate;
(b) Commissioners of Police, wherever they have been appointed, may also, if satisfied as provided in sub-section (1), exercise of powers conferred by the said sub-section.''
07. The aforesaid section clearly says that ''any of the following officers'' i.e. District Magistrate, and the Commissioners of Police, wherever they have been appointed, may exercise the power under sub-section (1).
08. Shri Mangal, learned counsel for the petitioner emphasized that as per Section 3(2)(b) of the Act of 1980, the Commissioner of Police, wherever they have been appointed, should exercise the power in place of District Magistrate is an absurd submission because the Commissioner of Police are appointed in the State of Madhya Pradesh only in the Districts of Bhopal & Indore, therefore, only in these cities, the Commissioner of Police is authorized to pass an order under sub-section (1) of Section 3 of the Act of Signature Not Verified Signed by: RAVI PRAKASH Signing time: 24-02-2025 7.13.20 PM NEUTRAL CITATION NO. 2025:MPHC-IND:4911 4 WP-12476-2023 1980. It doesn't mean that the power of District Magistrate under Section 3(2)(a) of the Act of 1980 has been taken away. As per language of Section 3(2), any of the officer means Commissioner of Police or District Magistrate wherever they have been appointed, can exercise the power. Hence, such submission is liable to be rejected.
09. Admittedly, the petitioner has already served six months of period of detention. This petition has virtually rendered infructuous. Shri Mangal insists that the petition has not rendered infructuous because the petitioner is challenging the legality of the order of detention and the same should be decided on merit.
10. The petitioner is seeking quashment of order of detention for his release from custody before expiry of six months. In support of his contention, he has placed reliance upon a judgment delivered by the Division Bench of this Court in the case of Kailashbai v/s Union of India & Others reported in 2008 SCC OnLine MP 913 , in which the Division Bench of this Court has held that even after undergoing the period of detention, the petition is maintainable to examine the legality of the order of detention.
11. In paragraph - 9 of Kailashbai (supra), the Division Bench has clarified that if the effect of detention is forfeiture of the property, this Court can go into the legality, propriety and validity of the order of detention to see whether the order was legal or proper. Therefore this judgment is of no help to the petitioner. In the present case, there is no such consequential effect or the order of attachment of properties after expiry of period of detention. Therefore, facts of the present case are altogether different.
Signature Not Verified Signed by: RAVI PRAKASH Signing time: 24-02-2025 7.13.20 PMNEUTRAL CITATION NO. 2025:MPHC-IND:4911 5 WP-12476-2023
13. Shri Mangal, learned counsel further submits that the District Magistrate has wrongly passed the order of detention by prescribing the period of six month from the date of order of detention because the power lies with the State Government to fix the period of detention on the basis of recommendation of the Advisory Board. In support of the aforesaid contention, learned counsel has placed reliance upon a judgment passed by the Apex Court in the case of Makhan Singh Tarsikka v/s The State of Punjab reported in AIR 1952 SC 27 .
14. In the case of Makhan Singh Tarsikka (supra) , the impugned order of detention was examined and set aside before expiry of the period of detention. However, in the present case, the period of detention had already been over long back. Even otherwise, irrespective to the fact that the District Magistrate has mentioned the period of detention in the order passed under Section 3(1), the appropriate Government under Section 12 of the Act of 1980 may confirm the period of detention and continue the detention of the person concerned for such period as it thinks fit maximum up to six months. The State Government has also power to revoke the order of detention. Section 13 of the Act of 1980 prescribes for maximum period of detention of any person up to six months. The District Magistrate has not the passed the order of detention beyond the period of six months, hence, no prejudice has been caused to the petitioner. Even otherwise, the trial under Section 3/7 of the Essential Commodities Act is still against the petitioner. No case for interference is called for.
15. Writ Petition stands dismissed being devoid of merit and Signature Not Verified Signed by: RAVI PRAKASH Signing time: 24-02-2025 7.13.20 PM NEUTRAL CITATION NO. 2025:MPHC-IND:4911 6 WP-12476-2023 substance.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
Ravi
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 24-02-2025
7.13.20 PM