IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16/11/2005
CORAM
THE HON'BLE MR. JUSTICE P. SATHASIVAM
AND
THE HON'BLE MR. JUSTICE S.K. KRISHNAN
H.C.P.No.777 of 2005
and HCMP.No.143 of 2005
P.M.S. Mohiadeen Sahib .. Petitioner
-Vs-
1. The State of Tamil Nadu rep.
by the Secretary to Government,
Public (SC) Department
Fort St. George
Chennai 600 009.
2. The Union of India rep. by
The Secretary to the Government
Ministry of Finance
Department of Revenue (COFEPOSA UNIT)
3. The Superintendent of Central Prison
Central Prison, Chennai 600 003. .. Respondents
Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Habeas Corpus as stated therein.
For petitioner : Mr. B. Kumar, Sr. Counsel
for Mr. S. Palanikumar
For respondents: Mr. A. Kandasamy
Addl. Public Prosecutor for R.1&3
Mr. P. Kumaresan
A.C.G.S.C. For R.2
:ORDER
( Order of the Court was made by P. Sathasivam,J.)
The detenu by name P.M.S. Mohiadeen Sahib, who was detained under
Section 3 (1)(ii) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 ( in short “COFEPOSA Act”) by the impugned
proceedings of the first respondent in G.O.No.SR.1/633-3/20 05, dated
08.07.2005, challenges the same in this petition.
2. Heard Mr. B. Kumar, learned senior counsel for the petitioner,
Mr. A. Kandasamy, learned Additional Public Prosecutor for respondents 1 and
3 and Mr. P. Kumaresan, learned Additional Central Government Standing
counsel for the second respondent.
3. Though several grounds have been raised in the affidavit
questioning the impugned detention order, at the foremost, learned senior
counsel appearing for the petitioner would submit that though the predetention
representation was made on 04.07.2005, which was sent to the Superintendent of
Central Prison, Chennai, who forwarded the same to the Law Minister,
Government of Tamil Nadu on 05.07.2005 itself, the Detaining Authority has not
considered the pre-detention representation made by the petitioner, but passed
the detention order on 08.07.2005. It is also contended that even though in
the representation dated 21.07.2005 in para 6 there is a specific reference
regarding the pre-detention representation dated 04.07.2005 addressed to the
Law Minister, there was no proper consideration of the representation dated
21.07.2005. It is also his contention that, inasmuch as the predetention
representation dated 04.07.2005 was not placed, considered and disposed of in
the manner known to law by the Detaining Authority, the ultimate detention
order cannot be sustained. He further contended that the Detaining Authority
has not taken sincere and serious efforts in considering the representation
dated 21.07.2005, particularly when there is a specific reference to
pre-detention representation dated 04.07.2005. In support of the above
contentions, the learned senior counsel has relied on the following case laws.
(i)John Martin vs. State of West Bengal (AIR 1975 SC 775);
(ii)A.C.Razia vs. Govt., of Kerala (2004 SCC Criminal 618);
(iii) T.M.Syed Ali vs. State of Tamilnadu(1999 (2) CTC 490) and
(iv) Unreported judgment of this Court dated 02.08.1993 made in HCP. No.138
of 1993.
4. On the other hand, learned Additional Public Prosecutor appearing
for respondents 1 and 3 by taking us through the grounds of detention, counter
affidavit and placing relevant files, would submit that till detention order
was passed, the representation addressed to the Law Minister need not be
considered, since the Sponsoring Authority is Customs Department. He also
contended that inasmuch as the predetention representation dated 04.07.2005
was not sent to the authority concerned and not available for consideration,
the disposal of the representation dated 21.07.2005 cannot be faulted with.
5. We have carefully considered the rival contentions and perused the
relevant materials.
6. In the light of the limited issue involved, there is no need to
traverse all the factual details as stated in the affidavit as well as in the
counter affidavit. It is brought to our notice that on 04.07 .2005, a
representation from P.M.S. Mohiadeen Sahib, detenu in this case, addressed to
the Law Minister, Government of Tamil Nadu Chennai-9, was sent to the
Superintendent of Central Prison, Chennai 600 003 . The postal acknowledgment
shows that the said article was delivered by way of Speed Post to the
addressee, i.e., the Superintendent of Central Prison, Chennai-3 on
05.07.2005. On instructions, the learned Additional Public Prosecutor has
stated that the Superintendent of Central Prison, Chennai-3 has forwarded the
said representation to the Law Minister, Government of Tamil Nadu, Chennai – 9
on 05.07.2005 itself. It is to be noted that the impugned detention order was
passed on 08.07.2005. Even if it is accepted that the said letter might have
been received by the Law Minister on the next day, i.e., on 06.0 7.2005, still
the Detaining Authority had two days, before passing the order of detention.
It is the grievance of the petitioner that the said representation was not
even placed before the Detaining Authority.
7. It is also relevant to refer the representation dated 21.07.2005
made by the detenu on receipt of grounds of detention. The said
representation was made from Central Prison, Chennai 3. The said
representation was addressed to the Secretary, Law and Order (Public)
Department, Secretariat, Chennai 9. It is not in dispute that the said
representation has been received by the concerned authority and considered by
the Detaining Authority. In this regard it is relevant to refer para 6 (4) of
the said representation, which reads as under.
(Tamil version deleted)
It is clear from the above extract that there is a specific reference to the
earlier representation dated 04.07.2005, which was addressed to the Law
Minister by the detenue from Central Prison through the concerned authority.
It is specifically stated that the said representation has not been considered
by the Detaining Authority.
8. In this regard, it is also useful to refer the stand taken by the
Additional Secretary to Government, Public Law and Order Department,
Secretariat, Chennai 9, in his counter affidavit dated 25.10.2005. In para
15, it is specifically stated that the Hon’ble Minister for Law considered and
rejected the representati on on 12.08.2005 and the same was intimated to the
detenu on 13.08.2005, which was received by him on the same day. It is not in
dispute and also clear from the information furnished in the counter affidavit
that the concerned authority is Law Minister. We have already referred to the
predetention representation addressed to the Law Minister, Government of Tamil
Nadu, Secretariat, Chennai 9, which was forwarded to the addressee on 0
5.07.2005 itself by the Superintendent, Central Prison, Chennai. In such a
circumstance, even if the said representation said to have been forwarded by
the Superintendent, Central Prison on 05.07.2005 was not available, the
Detaining Authority, while considering the representation dated 21.07.2005, in
the light of the specific averment in para 6, could have verified from the
records about the fate of the earlier representation said to have been sent on
05.07.2005. Though the learned Additional Public Prosecutor has placed a note
file, to show that no such representation dated 04.07.2005 was received by
them, a perusal of the said file clearly shows that there is no information
whether any effort was made to verify from the office of the addressee, viz.,
Law Ministry that any such representation was received. In such a
circumstance, we are of the view that the stand taken by the first respondent
cannot be accepted.
9. Now, let us consider the decisions of the Supreme Court and this
Court cited by the learned senior counsel for the petitioner with regard to
the above aspect. In the case of John Martin vs. State of West Bengal
reported in AIR 1975 S.C. 775, a Three Judge Bench of the Hon’ble Supreme
Court, while considering the representation of the detenu, has concluded,
“3. ….. This, however, does not mean that the appropriate Government can
reject the representation of the detenu in a casual or mechanical manner. The
appropriate Government must bring to bear on the consideration of the
representation an unbiased mind. There should be, as pointed out by the Court
in Haradhan Saha’s case, “a real and proper consideration” of the
representation by the appropriate Government. We cannot over-emphasis the
need for the closest and most zealous scrutiny of the representation for the
purpose of deciding whether the detention of the petitioner is justified. ”
10. The law laid down in John Martin’s case was subsequently followed
in the case of A.C. Razia vs. Government of Kerala reported in 2004 SCC
(Crl.) 618, which is also a Three Judge Bench decision. While considering the
power of the Central Government in considering the representation made by the
detenu, their Lordships have concluded,
“22. …… The exercise of the power under Section 11 should not be a mere
formality or a farce. Care and vigilance should inform the action of the
Government while discharging its supervisory responsibility. As observed in
Haradhan Saha case (1974 SCC (Crl.)816) and reiterated in K.M. Abdulla Kunhi
case (1991 SCC (Crl.)613, what is required is “real and proper consideration”.
The following observation in Abdul Karim (1969 (1) SCC 433) are quite opposite
in this context.
“But it is a necessary implication of the language of Article 22(5)
that the State Government should consider the representation made by the
detenu as soon as it is made, apply its mind to it and, if necessary, take
appropriate action. In our opinion, the constitutional right to a proper
consideration of the representation by the authority to whom it is made. The
right of representation under Article 22 (5) is a valuable constitutional
right and is not a mere formality.”
23. The same proposition has been highlighted by Rajendra Babu,J. By
observing that “there should be full and independent application of mind. ”
Even in the dissent judgment, Hon’ble Mr. Justice S.B. Sinha, has accepted
the above proposition and concluded,
“50. It is therefore, trite that all facts which are relevant for the purpose
of giving relief to the detenu are required to be considered. In that view of
the matter, the quality of an order passed by the Central government in terms
of Section 11(1)(b) of the Act cannot be different from that of the authority
which had passed the order.”
The above decisions make it clear that considering the representation of
detenu is not a mere formality, but the same has to be considered with an
unbiased mind and closest and most zealous scrutiny for the purpose of
deciding whether the detention is justified or not.
11. It is also relevant to refer the Division Bench decision of this
Court in the case of T.M. Syed Ali vs. State of Tamil Nadu reported in 1999
(II) CTC 490, wherein their Lordships have held that representation made
denying very occurrence before passing of detention order has to be considered
by the detaining authority. They also held that it is the duty of the
Sponsoring Authority to forward the same to the Government and failure to
consider such representation would vitiate the detention order.
12. In HCP.No.138 of 1993 dated 02.08.1993, a contention was raised,
viz., the detenu forwarded a representation on 21.01.1993 to the Detaining
Authority, wherein he had asked for copy of the retraction letter dated
19.11.1992. His representation was rejected on 16.02.1993, stating that no
such retraction was received by the Sponsoring Authority. The further
contention was that the receipt of the retraction letter was later admitted
and thus lack of proper consideration and disposal of the representation was
evident. With reference to the said contention, the Division Bench, after
considering the statement of the learned Public Prosecutor has concluded,
“6. …. The detaining authority had acted on the basis of the information
furnished by the sponsoring authority. We cannot overlook that the very
system contemplated under law, puts the responsibility on every one of these
authorities, so that the constitutional right of the detenu was not get
thwarted. If there is negligence of callciness on the part of any one
authority that will certainly enure in favour of the detenu. If the
sponsoring Authority had not furnished correct information to the Detaining
Authority, either due to negligence or with an ulterior purpose deliberately,
it can make no difference for ultimately the sufferer is the detenu. It is
settled law that consideration and representation must be effective and
purposeful. If the detaining authority had the benefit of the retraction
letter sent by the detenu, the manner in which the representation might have
been disposed of may still loom large. On that single ground of improper
riskless rejection of representation, detenu is bound to succeed…. ”
13. In the light of the above principles, we are of the view that
though the detenu has made pre-detention representation on 04.07.2005, which
was received by the Superintendent, Central Prison, Chennai and forwarded to
the addressee, Law Minister, Government of Tamil Nadu on 05.07.2005 itself, in
view of the fact that the same had been reiterated in the representation dated
21.07.2005, the Detaining Authority ought to have verified the earlier
representation and passed the order after due consideration. We are satisfied
that the Detaining Authority failed to consider these relevant aspects and the
detenu is entitled to succeed.
Under these circumstances, the order of detention impugned in this
petition is set aside and the petition is allowed. The petitioner/ detenu is
directed to be set at liberty forthwith from the custody unless he is required
in connection with any other case.
In view of disposal of the main petition, connected HCMP., is
closed.
Index:Yes
Internet:Yes
kh
To
1. The Secretary to Government,
State of Tamil Nadu
Public (SC) Department
Fort St. George
Chennai 600 009.
2. The Secretary to Government
Union of India
Ministry of Finance
Department of Revenue (COFEPOSA UNIT)
3. The Superintendent of Central Prison
Central Prison, Chennai 600 003.
4. The Director General of Police
Chennai 4.
5. The Commissioner of Police,
Greater Chennai, Chennai 8.
6. The Additional Director General
of Prisons, Egmore, Chennai 8.