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Madras High Court
Sharmila vs The Additional Secretary on 22 August, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 22/08/2011

CORAM
THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA
and
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN

H.C.P(MD)No.543 of 2011

Sharmila                         ..  Petitioner

vs.

1.The Additional Secretary,
  Government of India,
  Ministry of Consumer Affairs,
   Food and Public Distribution
  (Department of Consumer Affairs),
  Room No.270, Krishi Bhavan,
  New Delhi - 110 001.

2.The Secretary,
  Government of Tamilnadu,
  Co-operation, Food and
  Consumer Protection Department,
  Secretariat,
  Chennai - 9.

3.The District Collector and
   District Magistrate,
  Trichy District,
  Trichy.

4.The Inspector of Police,
  CS, CID, Tiruchirapalli.      ..   Respondents

	Petition filed under Article 226 of the Constitution of India to issue a
Writ of Habeas Corpus to call for the records pertaining to the order of
detention passed by the third respondent in his proceedings
P.B.M.M.S.E.C./ACT/C.M.P. No.02/2011 dated 23.06.2011 and quash the same as
illegal and produce the detenu, namely Hakim @ Mohammed Hakkim, S/o.Samsudeen @
Raja Mohammed, aged about 40 years, who is confined in Central Prison, Trichy
before this Court and set him at liberty.

!For petitioner       ... Mr.T.Lenin Kumar
^For 1st respondent   ... Mr.V.Durai Pandian,
                          Central Govt Standing
                                Counsel
For respondents 2 to 4... Mr.P.Jyothi
                          Additional Public Prosecutor	

:ORDER

(Order of the Court was made
by P.P.S.JANARTHANA RAJA , J)
The petitioner is the wife of the detenu-S.Hakim @ Mohammed Hakkim. The
petitioner has come forward with this Habeas Corpus Petition seeking for the
relief of quashing the Detention Order in P.B.M.M.S.E.C./ACT/C.M.P. No.02/2011
dated 23.06.2011 passed by the third respondent, slapped on her husband
detaining him as a “Black Marketeer” as contemplated under the provisions of the
Prevention of Blackmarketing and Maintenance of Supplies of Essential
Commodities Act, 1980 (“Act” in short).

2. The brief facts of the case are as follows:-

On 10.6.2011, when the Inspector of Police, Civil Supplies CID,
Tiruchirappalli and his police party and flying squad were in surveillance
against hoarding and smuggling of essential commodities, they received an
information about hoarding of essential goods in the Godowns bearing Door
Nos.3/3, 2/4 and 2/40, North Street Ilankakurichi of Manapparai Taluk,
Tiruchirappalli District. Immediately, they went there and when searched in the
Godown bearing Door No.3/3, they found 236 bags of PDS Rice each containing 50
kgs and the same was seized under cover of Mahazar in the presence of witnesses
and similarly, they seized 114 bags of PDS rice in Door No.2/4 and 53 bags of
PDS rice in Door No.2/40. In the enquiry, it was revealed that Door No.3/3 was
owned by one Pathumuthu, w/o. Mohamed Abdul Kadar and Door No.2/4 was owned by
one Mohamed Kasim (late) and now under custody of Pathumuthu and Door No.2/40
was owned by one Mohamed Refeek. It is further revealed that the rice was used
to be collected by 1) Hakkim @ Mohamed Hakkim of Manapparai 2) Mohamed Rafeek 3)
Rathumuthu 4) Kamuludeen of Vaiyampatti and the same was transported by Hakkim @
Mohamed Hakkim for selling at a higher price. Hence, a case was registered in
CSCID Cr.No.499/2011 U/4 6(4) TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of EC Act,
1955. Later, Revenue Divisional Officer was directed to conduct an enquiry in
the matter and to file a detailed report. The said R.D.O has also filed a
detailed report stating that the detenue has been engaged in procuring and
selling of PDS rice in a manner prejudicial to the maintenance of supplies of
commodities essential to the community. Therefore, the detaining authority
was satisfied that the detenu is a black marketeer. Therefore, he was detained
by the impugned order of detention. Aggrieved by that, the petitioner/wife of
the detenu has filed the present Habeas Corpus Petition.

3. Learned counsel for the petitioner vehemently contended that the
detention order passed by the third respondent is wrong, illegal and without any
basis and justification and it is also violative of Articles 19 and 21 of the
Constitution of India. He further submitted that there is a clear violation of
the provisions of Section 3(4) of the Act and as per the provision, the State
Government shall, within seven days, report the fact to the Central Government
together with the grounds on which the order has been made and such other
particulars as, in the opinion of the State Government, have a bearing on the
necessity for the order. He further submitted the detenu is unable to get the
benefit of Section 14 of the Act which deals with revocation of detention order
by the Central Government. He further submitted that a perusal of the detention
order reveals that the detaining authority has relied on the R.D.O’s report but
a copy of the R.D.O’s report was not given to the detenu. Therefore, there is
clear violation of the provision of Section 8(1) of the Act. He further
submitted that the detenu has made representation to all the respondents, but
the same was not considered by any of the authorities and therefore, there is
violation of Articles 21 and 22 of the Constitution of India. Under the
circumstances, the counsel for the petitioner submitted that the order of
detention passed by the detaining authority is wrong, illegal and it is a
violation of the constitutional right. Therefore, the order of detention passed
by the third respondent has to be set aside.

4.Learned Additional Public Prosecutor appearing on behalf of the
respondents 2 to 4 submitted that the detaining authority has considered all the
facts and circumstances and correctly detained the detenu, since the detenu has
been engaged in the smuggling of public distribution system rice which is an
essential commodity as defined in Essential Commodities Act 1955 and that it was
smuggled for sale at higher prices in black market with a view to make gain. It
is also stated that the activities of the detenu is prejudicial to the
maintenance of supplies of commodities essential to the community and his
activities might endanger social security and stability and also pose an
imminent threat to social order. Therefore, the normal criminal law will not
have the desired effect of effectively preventing him from indulging in such
activities against the Act, which are prejudicial to the maintenance of supplies
of commodities essential to the community in future. Therefore, the order of
detention passed by the third respondent is in accordance with law and hence the
same has to be confirmed. However, the counsel admitted that the second
respondent-Government of Tamil Nadu, has not considered the representation of
the detenu. Learned Central Government Standing Counsel appearing for the first
respondent has also supported the case of the learned Additional Public
Prosecutor and argued on the same lines.

5. Heard the counsel and perused the order of detention under challenge.
In paragraph No.4 of the detention order, it is stated that Revenue Divisional
Officer was directed to conduct a detailed enquiry and submit a report on the
antecedents and activities of the detenue. The Revenue Divisional Officer, in
her enquiry, has confirmed that the detenu has been engaged in procuring and
selling of PDS rice and has also been acting in a manner prejudicial to the
maintenance of Supplies of Commodities Essential to the community. Relying on
the said report, the detaining authority came to the conclusion that the detenu
is a black marketeer but in the record, it is seen that a copy of the R.D.O’s
report was not furnished to the detenu. It is stated by the learned Additional
Public Prosecutor that it was a confidential report and therefore, the same was
not given to the detenu. It is a clear violation of the principles enunciated
by this Court in the case of Mageswari V. Government of Tamil Nadu, rep. by its
Secretary, Prohibition and Excise Department, Chennai and another reported in
(2011) 3 MLJ (Crl) 391 wherein the scope of Section 8(1) of the Tamil Nadu Act
XIV has been considered, which is similar to Section 8 of the Prevention of
Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980.
Paragraph No.7 of the said judmgment reads as follows:-
“7. Of course, the language of Section 8(1) does not refer to the supply
of copies of the documents along with the grounds of detention. It simply
refers to the communication to the detenu of the grounds on which the order of
detention has been made. But, however, it was superadded with the rider
specifying the purpose for which the grounds are to be communicated. The
purpose enshrined therein is to afford the detenu the earliest opportunity of
making an effective representation against the order of detention to the
Government. The mere supply of the grounds of detention unaccompanied by copies
of the materials relied on by the detaining authority, is of no use for the
purpose of making an effective representation, at the earliest opportunity,
against the order of detention. Therefore, we are of the view that the supply,
of copies of materials relied on along with the grounds of detention is also the
requirement of the said provision to enable the detenu to make an effective
representation at the earliest point of time. In other words, the supply of
grounds of detention as contemplated in Section 8(1), will include the supply of
the copies of the relied on documents also and this view will also be
strengthened by the fact that the abstract order of detention could not have
been passed even before preparing the grounds of detention stating the reasons.”

6. In the light of the above decision, the detenu ought to have been
given a copy of the relied on documents along with the detention order. There
is no dispute that a copy of the R.D.O. was not furnished to the detenu.
Therefore, it is a clear violation of the provision of Section 8(1) of the Act.

7. It is further stated by the learned counsel for the petitioner that the
representation sent on behalf of the detenu to the authorities was not at all
considered and the learned Additional Public Prosecutor has admitted that they
have not considered the representation. Further, it is seen that after passing
the detention order, the State Government ought to have sent the detention order
with the relevant papers to the Central Government. In this case, there is no
material available on record to show that the State Government has sent all the
relevant records as contemplated under Section 3(4) of the Act. Section 3(4) of
the Act reads as under:-

“When any order is made or approved by the State Government under this
section or when any order is made under this section by an officer of the State
Government not below the rank of Secretary to that Government specially
empowered under sub-section (1), the State Government shall, within seven days,
report the fact to the Central Government together with the grounds on which the
order has been made and such other particulars as, in the opinion of the State
Government, have a bearing on the necessity for the order.”
If the State Government does not send the same to the Central Government under
Section 3(4) of the Act, the Central Government cannot exercise its power for
revocation of the order under Section 14 of the Act. Section 14 of the Act reads
as under:-

“14. Revocation of detention orders.-

(1) Without prejudice to the provisions of section 21 of the General
Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked
or modified-

(a) notwithstanding that the order has been made by an officer of a
State Government, by that State Government or by the Central Government;

(b) notwithstanding that the order has been made by an officer of
the Central Government or by a State Government, by the Central Government.
(2) The revocation or expiry of a detention order shall not bar the making
of a fresh detention order under section 3 against the same person in any case
where fresh facts have arisen after the date of revocation or expiry on which
the Central Government or a State Government or an officer, as the case may be,
is satisfied that such an order should be made.”

From a reading of the above provision, it is clear that when the order is
approved by the State Government under this Section, the State Government shall,
within seven days, report the fact to the Central Government together with the
grounds on which the order has been made and such other particulars as, in the
opinion of the State Government, have a bearing on the necessity for the order.
There is no dispute that in the present case, the State Government has not sent
all the relevant records as contemplated under Section 3(4) of the Act.
Further, Section 14 of the Act also empowers the Central Government to revoke
the Detention Order. If the State Government does not send the same to the
Central Government under Section 3(4) of the Act, the Central Government cannot
exercise its power for revocation of the order under Section 14 of the Act.
Therefore, it is a clear violation of Section 3(4) of the Act. The said
provisions are the subject matter of interpretation in H.C.P. (MD)No.513 of 2011
dated 3.8.2011 wherein this Court considered the earlier judgment of this Court
made in H.C.P.(MD)No.4 of 2011 dated 23.03.2011 in the case of J.Susila v. The
Additional Secretary, Government of India, Ministry of Consumer Affairs, Food
and Public Distribution (Department of Consumer Affairs), New Delhi and others,
in which it is stated in Paragraph-8 as under:-

“8.Under Section 3(4) of the prevention of Blackmarketing and Maintenance
of Supplies of Essential Commodities Act, 1980 (“Act” in short), the State
Government shall, within seven days, report the order made by the State
Government along with the entire particulars, to the Central Government. Under
Section 14 of the Act, the Central Government may revoke or modify the order of
detention. The detenu had made a representation to the Central Government on
07.12.2010 and the same was addressed to the Secretary of Central Government
through the Superintendent of Prison, Palayamkottai. In the counter filed by the
Union of India, the first respondent herein, it is stated that the Central
Government received the English version of the detention order, grounds of
detention and approval of the State Government from Government of Tamil Nadu
vide letter dated 03.12.2010 except supporting documents. It is further stated
that the Central Government received two representations dated 07.12.2010 in
Tamil and thereafter, vide letter dated 14.12.2010, the Central Government
requested the State Government to furnish the English version of the
representations, and in spite of reminders, the State Government has not
supplied the English version. It is categorically stated that due to non-receipt
of English version of the representations, it has not been possible for the
Central Government to consider the representations. Section 14 of the Act
empowers the Central Government with a power to revoke the detention order and
it is the duty of the detaining authority to report the fact of detention order
to the Central Government together with grounds on which the order has been
made. The procedure envisaged under Sub-Section 4 of Section 3 of the Act is not
an empty formality. The word used is “shall”. Therefore, it is mandatory that
the State Government within seven days, report the fact of the order. It is also
mandatory on the part of the State Government to furnish the grounds on which
the order has been made. Under Section 14 of the Act, the representation of the
detenu dated 07.12.2010 ought to have been considered. The first respondent
would state that they have received the detention order and other relevant
papers except the supporting documents, which is violative of Sub-Section 4 of
Section 3 of the Act. The first respondent would categorically state that due to
the non-receipt of the English version of the representation, the Central
Government has not considered the representation of the detenu. Therefore, on
this ground, the detention order is vitiated.”

From a reading of the above, it is clear that this Court has categorically
stated that it is mandatory on the part of the State Government to send the
report within a period of seven days. We also agree with the above view of the
Division Bench of this Court. Therefore, in view of the violation of Section
3(4) of the Act, the order of detention is liable to be set aside.

8. Further, the Supreme Court in the case of Kamleshkumar Ishwardas Patel
v. Union of India reported in (1995) 4 SCC 51, considered the scope of
prevention and detention and held in paragraph-48 as under:-
“48.By order dated 27-7-1993

made under Section 3 of the COFEPOSA Act by Shri Mahendra Prasad, Joint
Secretary to the Government of India, an officer who had been specially
empowered under Section 3(1) of the COFEPOSA Act Jayantilal Somchand Shah, the
husband of the appellant, was ordered to be detained. The writ petition filed by
the appellant challenging the said detention was dismissed by the Bombay High
Court by judgment dated 27-10-1993. One of the contentions that has been urged
on behalf of the appellant before this Court was that he had addressed a joint
representation dated 14-9-1993 to the detaining authority, the Central
Government and the Advisory Board and the same was submitted through the
Superintendent, Bombay Central Prison and that the said representation was
rejected by the Central Government and it was not considered and decided
independently by the detaining authority himself. These facts are not disputed
on behalf of the respondents. Since the appellant had submitted a representation
to the detaining authority, namely, the officer who was specially empowered to
make an order of detention, and the said officer did not consider the
representation there has been a denial of the constitutional safeguard
guaranteed under Article 22(5) of the Constitution. As a result the detention of
the appellant has to be held to be illegal and the said appeal has to be
allowed.”

9. The above judgment of the Supreme Court supports the case of the
petitioner on the ground that the first and second respondent-Central Government
ought to have considered the representation of the detenu, otherwise, it will
amount to denial of the constitutional safeguard guaranteed under Article 22(5)
of the Constitution. In the present case, the detenu had sent a representation
dated 28.06.2011 to all the respondents, and therefore, they ought to have
considered the above representation as per the above judgment of the Supreme
Court. Non-consideration of the representation on the part of the respondents is
against the above judgment of the Supreme Court.

10. In the case of Rekha v. State of Tamil Nadu reported in (2011) 5 SCC
244, the Supreme Court has held in paragraph-39 as under:-
“39. Personal liberty protected under Article 21 is so sacrosanct and so
high in the scale of constitutional values that it is the obligation of the
detaining authority to show that the impugned detention meticulously accords
with the procedure established by law. The stringency and concern of judicial
vigilance that is needed was aptly described in the following words in Thomas
Pelham Dale case: (QBD p.461)
“Then comes the question upon the habeas corpus. It is a general rule, which has
always been acted upon by the courts of England, that if any person procures the
imprisonment of another he must take care to do so by steps, all of which are
entirely regular, and that if he fails to follow every step in the process with
extreme regularity the court will not allow the imprisonment to continue.”
After considering the overall view and the facts and circumstances of the case,
we are of the considered view that in the present case, there is violation of
the provisions of Section 3(4) of the Act and also non-consideration of the
representation of the detenu by the respondents 1 to 3. After considering the
principles enunciated by this Court as well as the Supreme Court in the
judgments cited supra, we are of the view that the order of detention passed by
the detaining authority is liable to be set aside.

11. In the result, the Habeas Corpus Petition is allowed and the order of
detention passed by the third respondent in his Proceedings
P.B.M.M.S.E.C./ACT/C.M.P.No.02/2011 dated 23.06.2011 is set aside. The detenu
is directed to be released forthwith unless his presence is required in
connection with any other case.

asvm

To

1.The Additional Secretary,
Government of India,
Ministry of Consumer Affairs,
Food and Public Distribution
(Department of Consumer Affairs),
Room No.270, Krishi Bhavan,
New Delhi – 110 001.

2.The Secretary,
Government of Tamilnadu,
Co-operation, Food and
Consumer Protection Department,
Secretariat,
Chennai – 9.

3.The District Collector and
District Magistrate,
Trichy District,
Trichy.

4.The Inspector of Police,
CS, CID, Tiruchirapalli.

5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.


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