BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 31/08/2006 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE A.SELVAM H.C.P.(MD) No.206 of 2006 Moun Mary .. Petitioner vs 1.The District Collector and District Magistrate Thoothukudi District Thoothukudi 2. The Secretary to Government Food Co-operation and Consumer Protection Department Secretariat Chennai 3. The Additional Secretary to Government of India Department of Consumer Affairs Room No.2720, Krishi Bhavan New Delhi 110 001. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India calling for the entire records pertaining to the detention order passed by the first respondent in P.A. to D.S.O.Confdl.1/2006 vide his order dated 19.6.2006 and quash the same and consequently direct the respondents to produce the body of person of the detenu by name one G.Kesavan, son of Gangadharan, before this Court and set him at liberty. !For Petitioner ... Mr.R.Anand ^For Respondents ... Mr.N.Senthurpandian, A.P.P. :ORDER
(Order of this Court was made by M.CHOCKALINGAM, J.)
Seeking to quash an order of the first respondent passed on 19.6.2006
terming the detenu Kesavan, as a “Black-Marketeer”, the petitioner, the wife of
the detenu, has brought forth this petition for a writ of habeas corpus.
2.The Court heard the learned Counsel for the petitioner who elaborately
put forth the contentions. The order under challenge is also looked into.
3.As could be seen from the order, the detenu is a license holder for the
distribution of kerosene supplied at 50 litres per day; but, on 18.3.2006, he
was found in possession of 700 litres of Public Distribution System Kerosene.
Then, a case came to be registered against him. Within a short span of three
months, he was found in possession of 1840 litres of PDS kerosene on 13.6.2006,
and the second case came to be registered. On the recommendation made by the
sponsoring authority, the first respondent, the District Collector and District
Magistrate, Tuticorin District, passed an order of detention terming him as a
Black Marketeer.
4.The order under challenge is assailed by the petitioner on the following
grounds:
(i) There was a delay noticed. A representation was made by the detenu on
4.7.2006. The remarks were called for on 7.7.2006, and they were received only
on 13.7.2006. Thus, there was a delay of 5 intervening days. Subsequently, it
has reached the Under Secretary on 14.7.2006, and it reached the hands of the
Deputy Secretary on 17.7.2006, and in between this, there was a delay of 3 days
noticed. Thus, the delay of five days at the first spell and three days at the
second spell remained unexplained. Hence, it is fatal to the order impugned.
(ii) The remand report which was made before the Judicial Magistrate
concerned, was not placed by the sponsoring authority before the detaining
authority. Had it been placed, a copy of the same would have been served on the
detenu, enabling him to make the representation effectively, but not done so.
(iii) On 19.6.2006, the impugned order was passed by the detaining
authority, the first respondent. From the perusal of the papers, it could be
seen that an amended order was passed by the authority on 26.6.2006. A perusal
of the amended order would clearly show that it was not a mistake that has crept
in, and at four points, the amendments of the Sections have been made. Thus, it
would be indicative of the fact that when the order came to be passed by the
detaining authority on 19.6.2006, there was no application of mind. Had he
applied his mind, such an order could not have been passed on 19.6.2006.
(iv) Apart from the above, so far as the amended order is concerned, the
same was not placed before the Government at all. An order approving the
detention order, is passed by the Government on 29.6.2006. A perusal of the
same does not indicate that the amended order dated 26.6.2006 was placed before
the Government. Thus, what was approved by the Government was the original
order; but, the amended order did not reach the Government at all. Under the
circumstances, it has got to be set aside.
5.The Court heard the learned Additional Public Prosecutor on the above
contentions.
6.After careful consideration of the rival submissions made, this Court is
of the considered opinion that it is a fit case where the order of the detaining
authority has got to be set aside. So far as the first contention that there
was a delay, the Court is unable to agree with the petitioner’s case. Between
7.7.2006 and 13.7.2006, there were intervening holidays on 8.7.2006 and
9.7.2006, and thus, there was a delay of 3 days. On the second spell also,
there was a delay of 3 days. This, in the opinion of the Court, was not a
delay.
7.Insofar as the second contention that the remand report was not placed
by the sponsoring authority before the detaining authority, and had it been
placed, a copy of the same would have been served on the detenu, and effective
representation could have been made, the same cannot be a ground to set aside
the order since the remand report was placed before the Judicial Magistrate for
the purpose of passing the judicial remand. Under the circumstances, this Court
is of the opinion that it cannot be a ground in favour of the petitioner.
8.As regards the other two contentions, the Court has to necessarily agree
with the petitioner’s Counsel. As could be seen from the available materials,
originally an order was passed on 19.6.2006, which was served on the detenu. He
made a representation, and it was pending consideration with the Government.
The order of detention was approved by the Government on 29.6.2006. Pending
consideration of the first order passed on 19.6.2006, an amended order came to
be passed on 26.6.2006. It is a matter of shock and surprise to note that the
amended order passed on 26.6.2006, was never placed before the Government by the
detaining authority. So far as the amended order is concerned, it is pertinent
to point out that the approval of the first order dated 19.6.2006 was made by
the Government on 29.6.2006. Thus, what has been now approved by the State is
the order dated 19.6.2006 and not the amended order. That apart, whenever an
order is passed by the detaining authority like this, time stipulation will be
available for making the representation, and the detenu must be put on notice
that he is having 12 days time, within which he could make the representation,
if he so desires. In the instant case, it is available in the order dated
19.6.2006, but not in the amended order. Thus, it was not made known to the
detenu that after amending the order, he is also having sufficient time to make
his representation. Thus, the order lacks legally in all respects as mentioned
above. In such circumstances, the Court has no hesitation to set aside the
order.
9.In the result, this habeas corpus petition is allowed setting aside the
order of the first respondent. The detenu is directed to be set at liberty
forthwith unless his presence is required in any other case.
To:
1.The District Collector and District Magistrate
Thoothukudi District, Thoothukudi
2.The Secretary to Government
Food Co-operation and Consumer Protection
Department
Secretariat, Chennai
3.The Additional Secretary to Government of
India
Department of Consumer Affairs
Room No.2720, Krishi Bhavan
New Delhi 110 001.
4.The Superintendent of Central Prison
Palayamkottai.
5.The Public Prosecutor
Madurai Bench of Madras High Court