Municipal Commissioner with Additional Charge of DM Can Order Detention Under Prevention of Black Marketing and Maintenance of Supplies and Commodities Act: Madhya Pradesh HC

The High Court of Madhya Pradesh, Indore Bench recently held that a Municipal Commissioner was competent to issue the order of detention U/S 3(2) of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as "The Act of 1980") even though she was temporarily delegated with the additional charge of District Magistrate. The division bench of Justice Vivek Rusia and Justice Subodh Abhyankar was essentially dealing with a petition moved by the mother of detainee. She argued that the order of detention of her son passed by the Municipal Commissioner was illegal as the Commissioner was neither a competent authority to passed the order U/S 3(2) nor did she timely communicate about the detention order along with grounds for detention to the State Government, as required U/S 3(3) of the Act of 1980. As per the FIR, the detainee and other accused are charged under under Sections 420, 120-B and 406 IPC along with Section 3 and 7 of Essential Commodities Act, 1955 for irregularities in sale of goods and maintenance of a fair price shop. The District Supply Controller informed the Municipal Commissioner regarding the alleged offences committed. Acting upon it, she directed the detention of the detainee for an unspecified period pursuant to the power conferred U/S 3(1), 3(2) of the Act of 1980. Counsel for the Petitioner asserted that a person who is holding the additional charge cannot pass an order of detention as the provisions under the Act of 1980 have to be strictly construed. He relied upon the decisions rendered by the Supreme Court in Ajaib Singh v. State of Punjab and Hetchin Haokip v. State of Manipur & Ors. He further submitted that no communication, as required U/S 3(3) of the Act of 1980 has been made and even if it is made, it was not forthwith, as the order has been passed on 05.10.2021, whereas the intimation was made on 13.10.2021. It was also argued by the Counsel for Petitioner that the order of detention was for an unspecified period which runs contrary to Article 22(4)(a) of the Constitution of India. He referred to the decision of the High Court in Khurshid v. State of Madhya Pradesh & Ors. wherein it was held that if the order of detention does not specify the period of detention, then such order is vitiated. He further argued that the impugned order was not at all necessary specially when the detainee was already booked under the provisions of Essential Commodities Act as well as IPC. Per contra, Counsel for the State submitted that the Municipal Commissioner, who was given the additional charge of DM, acted within the bounds of the power conferred upon her by the Chief Secretary of Madhya Pradesh by the order of the Governor of State. He further submitted that the detention is for 6 months and not for an indefinite period. As far as the requirement of communication U/S 3(3) of the Act of 1980 was concerned, it was argued that the same is with respect to cases wherein the detainee is immediately taken into custody. In the present case, even though the order of detention was passed on 05.10.2021, the detainee was taken into custody on 18.11.2021 as he was absconding. The intimation was given to the State Government prior to the said date i.e., on 12.10.2021, which was approved by the State on 13.10.2021. Intimation to this effect was also sent to the Central Government on 18.10.2021. Therefore, the State concluded, there was no merit in the arguments put forth by the Petitioner. Counsel for the Petitioner in his rebuttal argued that the acting DM was not authorized by the State Government to pass any order of detention, as her authorization letter cannot be said to be extended for the purposes of the Act of 1980. He referred to Section 20(3) CRPC, wherein a person who is holding an additional charge can exercise its powers of the DM so far as it relates to the CRPC only. The Court noted that the decision in Ajab Singh case was distinguished in a fairly recent decision given by the Apex Court in State of M.P. v. Dharmendra Rathore. In the said case, the Supreme Court had held that Ajab Singh case pertains to the Defence of India Act,1962 which specifically provides that an order of detention cannot be passsed by any authourity lower than the District Magistrate. This was not the position with respect to M.P.Rajya Suraksha Adhiniyam, 1990. The Court also referred to the full bench judgement of the High Court in Girja Shankar Shukla v. Sub- Divisional Officer, Harda and Ors., wherein the Court distinguished Ajab Singh case and held that SDO placed in charge of duties of Collector in the latter's absence can preside over a meeting as provided U/S 55(3) of the Municipalities Act, 1961. Examining the provisions U/S 3(1)(2) of the Act of 1980, the Court held that there is no prohibition that an order of detention cannot be passed by an officer...

Municipal Commissioner with Additional Charge of DM Can Order Detention Under Prevention of Black Marketing and Maintenance of Supplies and Commodities Act: Madhya Pradesh HC

Zeeshan Thomas

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