IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.07.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.No.383 of 2008 Navaneetha Krishnan S/o Gurusamy Naicker .. Petitioner -Vs- 1. The Secretary to the Government Food, Cooperation and Consumer Protection Department Secretariat Chennai 600 009 2. The District Magistrate and District Collector Virudhunagar District Virudhunagar 3. The Secretary to the Government Food and Consumer Protection Department Government of India New Delhi 110 001 .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Habeas Corpus, calling for the records in connection with the order of detention passed by the second respondent dated 23.02.2008 in Cr.M.P.No.2/Black Marketer against the petitioner's uncle Sankarraj, son of Subba Naicker, aged about 44 years who is confined at Central Prison, Madurai and set aside the same and direct the respondents to produce the detenu before this Hon'ble Court and set him at liberty. For Petitioner :: Mr.V.Parthiban For Respondents :: Mr.M.Babu Muthu Meeran Addl. Public Prosecutor for R1 & R2 Mr.P.Kumaresan, ACGSC for R3 ORDER
(Order of the Court was delivered by D.MURUGESAN, J.)
The petitioner is the son-in-law of the detenu by name Sankarraj, S/o Subba Naicker, who has been branded as ‘Black Marketeer’ and detained under Section 3(2)(a) read with Section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 7 of 1980) in and by the proceedings dated 23.02.2008 passed by the second respondent. The said order is under challenge in this petition.
2. The detention order came to made under the following circumstances:
(i) On 25.12.2007 at about 5.30 hours, while the Sub Inspector of Police, CSCID, Virudhunagar and his party as well as the Special Tahsildar, Flying Squad, Virudhunagar and his team conducted joint raid in and around Aruppukkottai, they intercepted a Ashok Leyland Lorry bearing Regn.No.TN 39 Y 8544 near Jeyavilas weigh bridge on Madurai-Tuticorin bye-pass road in Aruppukkotai and checked and detected 240 bags of PDS boiled rice, each weighing 50 kgs. The lorry and the rice bags were seized under the cover of mahazar. The lorry driver Thiru.A.Maideen, S/o Aneefa was arrested and he gave a confessional statement in the presence of witnesses. In the confessional statement, he has stated that the detenu had loaded the rice bags with the assistance of loadmen at tank area in Thisayanvilai in Tirunelveli District. A case in Cr.No.922 of 2007 under Section 6(4) of TNSC (RDCS) Order, 1982 r/w Section 7(1)a(ii) of EC Act, 1955 was registered on the file of Virudhunagar CSCID police.
(ii) On 10.2.2008 at about 16.15 hours, the detenu was arrested and he also gave a confessional statement in the presence of witnesses. He was produced before the Judicial Magistrate, Aruppukkottai and remanded to judicial custody upto 22.2.2008 and was lodged in Central Prison, Madurai. The said remand was extended upto 7.3.2008. As the investigation revealed that the detenu had purchased the boiled rice meant for public distribution system from the cardholders and made attempts to smuggle the same for selling in black market for more pecuniary gain and that he had acted against the public distribution system, which is aimed to ensure supply of essential commodities at affordable price to the persons living below poverty line, the detaining authority namely, the District Magistrate and District Collector, Virudhunagar was satisfied that in order to curb the anti-social elements who illegally divert rice meant for public distribution system to the open market and that he found the detenu indulging in such activities prejudicial to the maintenance of supplies of essential commodities under the public distribution system to family cardholders, by the impugned detention order dated 23.2.2008, the detenu was detained.
3. Mr.V.Parthiban, learned counsel for the petitioner has submitted that in the grounds of detention, the detaining authority has relied upon the confessional statement of Thiru.A.Maideen, lorry driver, implicating the detenu and in order to make an effective representation, he had requested to furnish a copy of the said confessional statement on 11.3.2008, but the same was served only on 2.4.2008 i.e., after the Advisory Board had met on 28.3.2008. By virtue of the above, the right of the detenu to make an effective representation was deprived of. In this context, he would rely upon the judgment of this Court in Dhanushu @ Vijay S/o Chandran Subbiah and others v. State of Tamil Nadu rep.by the Secretary to the Government, Prohibition and Excise Department and others (2007) 2 MLJ (Crl) 1467. He would also submit that in paragraph-9 of the English version of the grounds of detention, it is stated as follows:-
“He is further informed that he has a right to make representation to The Chairman, Advisory Board, Madras High Court Complex, Chennai through the Superintendent of Central Prison, Madurai. Any representation that is made by him to the Government will be duly considered by the Government and will also be placed before the Advisory Board along with his case details for consideration of his case under section 10 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. He is also informed that he is entitled to be heard in person by the Advisory Board.”
Whereas in the Tamil version, in paragraph-9, it is stated as follows:-
“nkYk; mth; jiyth;. mwpt[iu Fgkk;. brd;id cah;ePjpkd;w tshfk;. brd;id vd;w Kfthpapl;L mtiu jLg;g[f; fhtypy; itf;fg;gl;Ls;s kJiu kj;jpa rpiwf; fz;fhzpg;ghsh; K:ykhf mwpt[iu Fkkj;jpw;F KiwaPL bra;J bfhs;s chpika[z;L vdt[k; mtUf;Fj; bjhptpf;fg;gLfpwJ/ mth; mDg;g[k; KiwaPL vjida[k; muR chpathW ghprPypf;Fk;/ nkYk; 1980Mk; Mz;ila fs;sr;re;ij jLg;g[ kw;Wk; mj;jpahtrpag; gz;l’;fs; tH’;fy; guhkhpg;g[r; rl;lk; (rl;l vz;/7-90) 10tJ gphptpd; fPH; mtuJ KiwaPL mwpt[iuf; FGkj;jpd; Kd;ghf ghprPyidf;F itf;fg;gLk;/ nkYk; mth; neuoahft[k; nkw;go FGkj;jpy; Kiwapl;Lf; bfhs;st[k; chpik bgw;wth; vd;Wk; bjhptpf;fg;gLfpwJ/”
Though in the English version the detenu was informed that his representation as well as the case details would be placed before the Advisory Board, in Tamil version, it is only stated that his representation would be placed before the Advisory Board. In view of the discrepancies, the detenu was not able to make an effective representation to the Advisory Board. Hence his right to make an effective representation is again deprived of and on the above two grounds, the detention order is liable to be set aside.
4. We have heard Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor for the respondents also.
5. So far as the first contention relating to the non furnishing of the confessional statement of the lorry driver is concerned, we are of the considered view that the detention order was not passed solely on the basis of the confessional statement of Thiru.A.Maideen, the driver of the lorry. In page 28 of the booklet, the statement of one P.Murugesh is enclosed. In page 30, the statement of one Basheer Ahmed is enclosed and in page 31, the statement of one Madurai Veeran is enclosed. In all these statements, the involvement of the detenu in smuggling activities have been spoken. The detaining authority had considered the entire materials and arrived at the satisfaction that the detenu indulged in activities prejudicial to the maintenance of supplies of essential commodities under the public distribution system to family cardholders. Therefore, the detaining authority has only referred the fact that the confessional statement of the lorry driver was also obtained. In our considered view, the failure on the part of the detaining authority to supply the said confessional statement along with the grounds of detention to the detenu would not vitiate the order of detention. It appears that the detenu had made a request for supply of the said document on 11.3.2008 and the same was supplied on 2.4.2008, of course, after the Advisory Board had met. The judgment in Dhanushu @ Vijay’s case reported in (2007) 2 MLJ (Crl) 1467 (supra) relied upon by the learned counsel for the petitioner relates to a case of relied upon document and only under the said circumstances, the Division Bench of this Court came to the conclusion that when a notification was heavily relied upon by the detaining authority, the detaining authority had failed to supply the same despite the request made in the representation and such notification was supplied only on 2.4.2007, by which date the Advisory Board had already met and on the said ground, the detention order was quashed. In our considered view, the said judgment is not applicable to the facts of the present case, as the confessional statement is not the only document which was relied upon by the detaining authority as contended by the learned counsel for the petitioner and while considering the grounds of detention, the detaining authority has merely referred to the confessional statement and therefore we reject the first contention of the learned counsel for the petitioner.
6. So far as the contention relating to the failure in furnishing the correct vernacular translation of paragraph-9 of the grounds of detention is concerned, the relevant provisions can be usefully referred to. Section 10 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 reads as under:-
“10. Reference to Advisory Boards.–Save as otherwise expressly provided in this Act, 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 before the Advisory Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer referred to in sub-section (2) of section 3, also the report by such officer under sub-section (3) of that section.”
From the said section, it is clear that 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 before the Advisory Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order. The appropriate Government is mandated to place only the grounds of detention as well as the representation, if any, received before the Advisory Board. (emphasis supplied).
7. On the facts of this case, first of all, we do not find any discrepancy in the translation. Though in the English version it is specifically stated that the representation as well as the case details would be placed before the Advisory Board under Section 10 of the Act, in the Tamil version it is stated that the representation would be placed before the Advisory Board. The translated copy of Tamil version would further say that in addition to the above, the representation will be placed in terms of Section 10 of the Act, necessarily meaning thereby the records which are bound to be placed before the Advisory Board under Section 10 relating to the grounds of detention. In fact the learned Additional Public Prosecutor has produced the files pertaining to the proceedings of the Advisory Board. By order dated 28.3.2008, the Advisory Board has found that there is sufficient cause for the detention of the detenu and such decision was arrived at only after perusing the entire records. When the entire records relating to the detention order including the grounds of detention and the representation received from the detenu were placed before the Advisory Board, in our considered view, the translation of paragraph-9 of the grounds of detention in Tamil does not vary and there is no discrepancy.
8. The right to make an effective representation is an integral part of the fundamental right and such a right is not a mere formality. However, the detenu could complain of his inability to make such a representation only within the parameters of the provisions of Section 10 and not beyond that. In our considered view, when the provisions of Section 10 have been complied with by the appropriate Government in placing all the matters before the Advisory Board, the contention that the detenu was prevented from making an effective representation is unacceptable.
9. For the foregoing reasons, there are no merits in both the contentions raised by the learned counsel for the petitioner. Accordingly, the habeas corpus petition fails and it is dismissed.
Index : yes (D.M.,J.) (S.P.V.,J.)
Internet: yes 08.07.2008
ss
To
1. The Secretary to Government
of Tamil Nadu
Food, Cooperation and Consumer
Protection Department
Chennai 600 009
2. The District Magistrate
and District Collector
Virudhunagar District
Virudhunagar
3. The Secretary to the Government
Food and Consumer Protection Department
Government of India
New Delhi 110 001
4. The Public Prosecutor
High Court, Madras
D.MURUGESAN, J.
and
S.PALANIVELU, J.
H.C.P.No.383 of 2008
08.07.2008