C.K. BUCH, J.

(1) BY means of filing this petition under Art. 226 of the Constitution of india the petitioner has challenged the legality and validity of the order passed by the district Magistrate, Valsad on 26. 3. 2002 in exercise of the powers conferred under Sec. 3 (2) of Prevention of Black-marketing and Maintenance of Supplies of Essential commodities Act, 1980 (hereinafter referred to as PBM Act).

(2) THE affidavit filed on behalf of the State Government tendered by Mr. H. H. Patel learned AGP and the affidavit tendered by Ms. P J. Davawala on behalf of the Union of india today are taken on record.

(3) ACCORDING to the detaining authority the petitioner was found acting in a manner prejudicial to the maintenance of supplies of essential commodities and, therefore, he has been detained and taken into custody.

(4) THE petitioner was supplied with the grounds of detention which are at annexure-B to the petition. The petitioner has been branded as a black-marketeer by the sponsoring machinery. As per the facts revealed from the grounds of detention served to the petitioner, he was found responsible for selling the stock of Kerosene allotted to him in the capacity of a dealer running fair price shop. The blue Kerosene requires to be sold/distributed to the ration card holders was intercepted from the tempo van bearing No. GJ-15-X 5480 on 21. 2. 2002. During the investigation of subsequent inquiries it was found that he has siphoned away the stock of blue Kerosene by preparing false and bogus bills in the name of ration card holders. He was issued notice to explain and the explanation tendered by the petitioner was not found satisfactory by the District Civil Supplies Authorities.

(5) IT is contended by the learned Advocate for the petitioner that the order of detention is violative of the principle enshrined under Arts. 21 and 22 of the constitution of India and there has been no material with the detaining authority except a couple of statements recorded and relied upon which themselves cannot be said to sufficient material so as to detain the petitioner.

(6) THE petitioner has challenged the legality and validity of the order of detention on number of grounds mentioned in Para 4 of the petition. However at the time of oral submissions Mr. Prajapati learned Advocate for the petitioner has concentrated his arguments mainly on 2 grounds i. e. , the grounds shown in Sub-paras A and L of Para 4 of the petition. It would be, therefore, appropriate to rely upon these grounds but the say of the learned Advocate for the petitioner can be appreciated in proper perspective if Sub-paras (i) and (1) of pages 7 and 10 of the petition are considered.

(7) WHILE enlarging the arguments Mr. Prajapati learned Advocate for the petitioner has pointed out that the day on which the representation against the order of detention was made to the detaining authority, the authority had become Functus Officio as the order of detention was approved by the Government. The detaining authority was requested to supply certain documents referred to in Paras (i) and (k) of the petition, so that the petitioner can make effective representation. Sub-paras (i) and (1) are reproduced as under:

" (i) The petitioner respectfully states that another representation dated 17. 4. 2002 was sent to the detaining authority by Advocate on behalf of the petitioner by registered post A. D. and the same has been duly received by the office of the detaining authority. The said representation was on different and new grounds which were not taken in earlier representation. Annexed hereto and marked as annexure-E is a copy of the representation dated 17. 4. 2002 and the acknowledgment receipt duly signed by the office of the respondent No. 2. (1) The petitioner respectfully states that the detaining authority has not supplied the materials referred to and relied on while passing the order of detention. It is stated in the grounds of detention that as shown in Patrak-A out of 14 ration cards, 9 ration cards are not attached with the fair price shop of the petitioner but they are attached with the fair price shop of Shri H. R. Patel and though those ration card holders had nothing to do with the fair price shop of the petitioner, the petitioner has prepared fake sale bills on the names of those 9 card holders and thereby unauthorisedly disposed of stock of Kerosene. The petitioner submits that if the statements of those card holders are seen it is very clear that their ration cards were attached with the fair price shop of the petitioner, therefore, it is not true that those ration card holders had nothing to do with the fair price shop of the petitioner. Secondly the petitioner was never intimated about cancellation of their ration cards and he was also not knowing about the transfer of those ration cards from the shop of the petitioner. The petitioner submits that the detaining authority has relied on the materials to show that those 9 ration cards were cancelled and transferred to another fair price shop on the basis of the applications given by them. However, no such materials have been supplied to the petitioner. Thus, the basic materials have not been disclosed to the petitioner. What has been supplied to the petitioner is the chart prepared by the sponsoring authority on the basis of those basic documents. Therefore, non supply of the basic documents has adversely affected the right of the petitioner to make an effective representation. Therefore, the continued detention of the petitioner has become bad in law. "

It was simultaneously prayed that the order of detention may be revoked as contended in ground (i).

(8) THIS representation had reached to the office of the detaining authority on 22. 4. 2002. As the detaining authority had become functus officio immediately on that very day, this representation could have been forwarded to the State Government as well as the Union of India by the detaining authority. However, the same was lying unattended at that time in the office of the detaining authority till 26. 4. 2002. So this delay in despatching the representation to the Government would vitiate the continued detention of the petitioner and the petitioner should be set at liberty forthwith on this sole ground.

(9) IN response to a query raised by the Court Mr. Prajapati has submitted that even the day on which the representation had reached to the office of the detaining authority i. e. , 22. 4. 2002 and on 25. 4. 2002, the office of the detaining authority might have observed holiday on account of Mahavir Jayanti being a State holiday, the detaining authority was obliged to explain the delay caused i. e. , in action in despatching the representation to the State Government and the Union of India on 23. 4. 2002 and 24. 4. 2002. Thus, this delay should be treated as fatal and at least the continued detention should be held to be violative of the Constitutional guarantee enshrined under Art. 22 (5) of the Constitution of India.

(10) THE affidavit-in-reply filed by the District Magistrate, Valsad today deals with practically all grounds taken by the detenu in the petition. Relevant reply to ground (i)is in Para 10 of the affidavit-in-reply. The authority has not cared to state anything as to what had happened on 23. 4. 2002 and 24. 4. 2002 and why no action was taken on 22. 4. 2002 itself to forward the representation to the Government by putting the seal and endorsement. It is not the say of the authority that he was out of headquarters or busy with any other work. Non-explanation of delay caused has been viewed seriously by the apex Court and this Court in more than one cases. In support of his say he has relied upon the decision of this Court (Coram: A. L. Dave-J) in Special Civil Application No. 9664 of 2000 decided on 16. 3. 2002 in the case of Mulshanker Kalyanbhai Jani vs. State of Gujarat where this Court has quashed the order of detention where it was found that delay of one day was not properly and satisfactorily explained. The ratio of this decision can help the present petitioner as the facts are mostly similar. In the circumstances it would be proper to quote the relevant Para 6 of this decision which reads as under:

"6. Having regard to the rival side contentions, the first factor that catches attention is the delay caused in forwarding the representation by the detaining authority. Admittedly the representation made on behalf of the detenu was received on 16. 11. 1999. The detention was papered on 12. 11. 1999 and, therefore, the detaining authority was only expected to forward the representation to the State Government. The representation is forwarded on 18. 11. 1999. The detaining authority has not explained as at what point of time the representation was received on 16. 11. 1999 and how it was dealt with on 17. 11. 1999 and, therefore, taking a liberal view that the representation may have been received on 16. 11. 1999 by evening, then also the time consumed in forwarding till 18. 11. 1999 remains unexplained i. e,, there is no explanation coming forward as to what was done in respect of the representation on 17. 11. 1999. For this one day probably the representation remained unattended. This inaction and want of attention to the representation can be considered as sufficient to have infringed the right of the detenu of making an effective representation.

(11) IT is not the say of the detaining authority in the affidavit-in-reply that the authority was not aware about the order of approval passed by the Government the day on which the representation of the present petitioner was received by his office.

(12) IN the above cited decision again this Court (Coram: C. K. Buch-J) has held that unexplained delay of 2 days would go to the root of the validity of the order of detention and continued detention of the petitioner while dealing with Special Civil applications Nos. 5416 of 2000 and Special Civil Application No. 5491 of 2002 decided on 1. 9. 2000.

(13) MR. H. H. Patel learned AGP for the respondent State has resisted this application by placing reliance on 2 different decisions. The first decision is in the case of Rajendrakumar Natverlal Shah vs. State of Gujarat and Ors. , reported in AIR 1988 sc 1255 [LQ/SC/1988/307] (relevant Para 15) where the Apex Court has observed that it is not necessary to much stress on the point of unexplained delay in disposal of the representation made by the appellant to the State Government. On facts the Apex Court has held that the appellant had made his representation to the State Government as well as to the advisory Board on 8. 6. 1987. The State Government has acted with promptitude and after due consideration rejected the same on 12. 6. 1984, there was no delay much less inordinate delay in considering the representation. But here in the present case the detaining authority was not considering the representation but the detaining authority had to forward the same to the State Government. So the requirement to explain the delay on each day should be viewed strictly. It is not a case where the detaining authority has tried to explain the delay and the same is not found to be satisfactorily explained. But this is a case of unexplained delay. So, on this ground the ratio of the second decision cited by the learned AGP reported in 1993 GCD 707 also would not help the State machinery. In this decision also a few days delay has not been an inordinate delay or undue delay because the authority was not supposed to deal with the representation but was supposed to forward the representation to the State government only. So on this sole ground itself the order of detention requires to be quashed and set aside.

(14) THOUGH Mr. Prajapati has argued on other ground i. e. , the ground (1) referred to hereinabove, he has not pressed reasons for the same. Therefore, it is not necessary to give any reasons with regard to the same since the petition is to be allowed on any of the grounds of challenge mentioned in the petition.

(15) SINCE, the averments made in the affidavit-in-reply submitted on behalf of the state Government being formal in view of the points discussed hereinabove; the same is not required to be responded in detail. Learned Addl. Standing Counsel for Central government Ms. P. J. Davawala has made formal submissions in the light of the affidavit filed by the Union of India. But the petition succeeds on the ground where the union of India has no concern.

(16) FOR the aforesaid reasons the order of detention dated 26. 3. 2002 passed by the district Magistrate, Valsad against the petitioner is hereby quashed and set aside. The petitioner detenu Mineshkumar Harilal Parmar is ordered to be set at liberty forth with if he is not required to be detained in any other cases. Rule is made absolute. Direct service.