{"id":33671,"date":"2011-08-22T00:00:00","date_gmt":"2011-08-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sharmila-vs-the-additional-secretary-on-22-august-2011"},"modified":"2015-06-29T04:39:36","modified_gmt":"2015-06-28T23:09:36","slug":"sharmila-vs-the-additional-secretary-on-22-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sharmila-vs-the-additional-secretary-on-22-august-2011","title":{"rendered":"Sharmila vs The Additional Secretary on 22 August, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
Sharmila vs The Additional Secretary on 22 August, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 22\/08\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA\nand\nTHE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN\n\nH.C.P(MD)No.543 of 2011\n\nSharmila                         ..  Petitioner\n\nvs.\n\n1.The Additional Secretary,\n  Government of India,\n  Ministry of Consumer Affairs,\n   Food and Public Distribution\n  (Department of Consumer Affairs),\n  Room No.270, Krishi Bhavan,\n  New Delhi - 110 001.\n\n2.The Secretary,\n  Government of Tamilnadu,\n  Co-operation, Food and\n  Consumer Protection Department,\n  Secretariat,\n  Chennai - 9.\n\n3.The District Collector and\n   District Magistrate,\n  Trichy District,\n  Trichy.\n\n4.The Inspector of Police,\n  CS, CID, Tiruchirapalli.      ..   Respondents\n\n\tPetition filed under Article 226 of the Constitution of India to issue a\nWrit of Habeas Corpus to call for the records pertaining to the order of\ndetention passed by the third respondent in his proceedings\nP.B.M.M.S.E.C.\/ACT\/C.M.P. No.02\/2011 dated 23.06.2011 and quash the same as\nillegal and produce the detenu, namely Hakim @ Mohammed Hakkim, S\/o.Samsudeen @\nRaja Mohammed, aged about 40 years, who is confined in Central Prison, Trichy\nbefore this Court and set him at liberty.\n\n!For petitioner       ... Mr.T.Lenin Kumar\n^For 1st respondent   ... Mr.V.Durai Pandian,\n                          Central Govt Standing\n                                Counsel\nFor respondents 2 to 4... Mr.P.Jyothi\n                          Additional Public Prosecutor\t\n\n:ORDER\n<\/pre>\n
(Order of the Court was made
\n by P.P.S.JANARTHANA RAJA , J)
\n\tThe petitioner is the wife of the detenu-S.Hakim @ Mohammed Hakkim. The
\npetitioner has come forward with this Habeas Corpus Petition seeking for the
\nrelief of quashing the Detention Order  in P.B.M.M.S.E.C.\/ACT\/C.M.P. No.02\/2011
\ndated 23.06.2011 passed by the third respondent,  slapped on her husband
\ndetaining him as a “Black Marketeer” as contemplated under the provisions of the
\nPrevention of Blackmarketing and Maintenance of Supplies of Essential
\nCommodities Act, 1980 (“Act” in short).\n<\/p>\n
\t2. The brief facts of the case are as follows:-\n<\/p>\n
\tOn 10.6.2011, when the Inspector of Police, Civil Supplies CID,
\nTiruchirappalli and his police party and flying squad were in surveillance
\nagainst hoarding and smuggling of essential commodities,  they received an
\ninformation about hoarding of essential goods in the Godowns bearing Door
\nNos.3\/3, 2\/4 and 2\/40, North Street Ilankakurichi of Manapparai Taluk,
\nTiruchirappalli District. Immediately, they went there and when searched in the
\nGodown bearing Door No.3\/3, they found 236 bags of PDS Rice each containing 50
\nkgs and the same was seized under cover of Mahazar in the presence of witnesses
\nand similarly, they seized 114 bags of PDS rice in Door No.2\/4 and 53 bags of
\nPDS rice in Door No.2\/40. In the enquiry, it was revealed that Door No.3\/3 was
\nowned by one Pathumuthu, w\/o. Mohamed Abdul Kadar and Door No.2\/4 was owned by
\none Mohamed Kasim (late) and now under custody of Pathumuthu and Door No.2\/40
\nwas owned by one Mohamed Refeek.  It is further revealed that the rice was used
\nto be collected by 1) Hakkim @ Mohamed Hakkim of Manapparai 2) Mohamed Rafeek 3)
\nRathumuthu 4) Kamuludeen of Vaiyampatti and the same was transported by Hakkim @
\nMohamed Hakkim for selling at a higher price.  Hence, a case was registered in
\nCSCID Cr.No.499\/2011 U\/4 6(4) TNSC (RDCS) Order 1982 r\/w 7(1)(a)(ii) of EC Act,
\n1955.  Later, Revenue Divisional Officer was  directed to conduct an enquiry in
\nthe matter and  to file a detailed report.  The said R.D.O has also filed a
\ndetailed report stating that the detenue has been engaged in procuring and
\nselling of PDS rice in a manner prejudicial to the maintenance of supplies of
\ncommodities    essential to the community.  Therefore, the detaining authority
\nwas satisfied that the detenu is a black marketeer.  Therefore, he was detained
\nby the impugned order of detention.   Aggrieved by that, the petitioner\/wife of
\nthe detenu has filed the present Habeas Corpus Petition.\n<\/p>\n
\t3. Learned counsel for the petitioner vehemently contended that the
\ndetention order passed by the third respondent is wrong, illegal and without any
\nbasis and justification and it is also violative of Articles 19 and 21 of the
\nConstitution of India.  He further submitted that there is a clear violation of
\nthe provisions of Section 3(4) of the Act and as per the provision, the State
\nGovernment shall, within seven days, report the fact to the Central Government
\ntogether with the grounds on which the order has been made and such other
\nparticulars as, in the opinion of the State Government, have a bearing on the
\nnecessity for the order.  He further submitted the detenu is unable to get the
\nbenefit of Section 14 of the Act which deals with revocation of detention order
\nby the Central Government.  He further submitted that a perusal of the detention
\norder  reveals that the detaining authority has relied on the R.D.O’s report but
\na copy of the R.D.O’s report was not given to the detenu.  Therefore, there is
\nclear violation of the provision of Section 8(1) of the Act.  He further
\nsubmitted that the detenu has made representation to all the respondents, but
\nthe same was not considered by any of the authorities and therefore, there is
\nviolation of Articles 21 and 22 of the Constitution of India. Under the
\ncircumstances, the counsel for the petitioner submitted that the order of
\ndetention passed by the detaining authority is wrong, illegal and it is  a
\nviolation of the constitutional right. Therefore, the order of detention passed
\nby the third respondent has to be set aside.\n<\/p>\n
\t4.Learned Additional Public Prosecutor appearing on behalf of the
\nrespondents 2 to 4 submitted that the detaining authority has considered all the
\nfacts and circumstances and correctly detained the detenu, since the detenu has
\nbeen engaged in the smuggling of public distribution system rice which is an
\nessential commodity as defined in Essential Commodities Act 1955 and that it was
\nsmuggled for sale at higher prices in black market with a view to make gain. It
\nis also stated that the activities of the detenu is prejudicial to the
\nmaintenance of supplies of commodities essential to the community and his
\nactivities might endanger social security and stability and also pose an
\nimminent threat to social order. Therefore, the normal criminal law will not
\nhave the desired effect of effectively preventing him from indulging in such
\nactivities against the Act, which are prejudicial to the maintenance of supplies
\nof commodities essential to the community in future.   Therefore, the order of
\ndetention passed by the third respondent is in accordance with law and hence the
\nsame has to be confirmed. However, the counsel admitted that the second
\nrespondent-Government of Tamil Nadu, has not considered the representation of
\nthe detenu.  Learned Central Government Standing Counsel appearing for the first
\nrespondent has also supported the case of the learned Additional Public
\nProsecutor and argued on the same lines.\n<\/p>\n
\t5. Heard the counsel and perused the order of detention under challenge.
\nIn paragraph No.4 of the detention order, it is stated that Revenue Divisional
\nOfficer was directed to conduct a detailed enquiry and submit a report on the
\nantecedents and activities of the detenue.  The Revenue Divisional Officer, in
\nher enquiry, has confirmed that the detenu has been engaged in procuring and
\nselling of PDS rice and has also been acting in a manner prejudicial to the
\nmaintenance of Supplies of Commodities Essential to the community.  Relying on
\nthe said report, the detaining authority came to the conclusion that the detenu
\nis a black marketeer but in the record, it is seen that a copy of the R.D.O’s
\nreport was not furnished to the detenu.  It is stated by the learned Additional
\nPublic Prosecutor that it was a confidential report and therefore, the same was
\nnot given to the detenu.  It is a clear violation of the principles enunciated
\nby this Court in the case of Mageswari V. Government of Tamil Nadu,<\/a> rep. by its
\nSecretary, Prohibition and Excise Department, Chennai and another  reported in
\n(2011) 3 MLJ (Crl) 391  wherein  the scope of Section 8(1) of the Tamil Nadu Act
\nXIV has been considered, which is similar to Section 8 of the Prevention of
\nBlackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980.
\nParagraph No.7 of the said judmgment reads as follows:-
\n\t“7. Of course, the language of Section 8(1) does not refer to the supply
\nof copies of the documents along with the grounds of detention.  It simply
\nrefers to the communication to the detenu of the grounds on which the order of
\ndetention has been made.  But, however, it was superadded with the rider
\nspecifying the purpose for which the grounds are to be communicated.  The
\npurpose enshrined therein is to afford the detenu the earliest opportunity of
\nmaking an effective representation against the order of detention to the
\nGovernment.  The mere supply of the grounds of detention unaccompanied by copies
\nof the materials relied on by the detaining authority, is of no use for the
\npurpose of making an effective representation, at the earliest opportunity,
\nagainst the order of detention.  Therefore, we are of the view that the supply,
\nof copies of materials relied on along with the grounds of detention is also the
\nrequirement of the said provision to enable the detenu to make an effective
\nrepresentation at the earliest point of time.  In other words, the supply of
\ngrounds of detention as contemplated in Section 8(1), will include the supply of
\nthe copies of the relied on documents also and this view will also be
\nstrengthened by the fact that the abstract order of detention could not have
\nbeen passed even before preparing the grounds of detention stating the reasons.”\n<\/p>\n
\t6. In the light of the above decision, the  detenu ought to have been
\ngiven a copy of the relied on documents along with the detention order.  There
\nis no dispute that a copy of the R.D.O. was not furnished to the detenu.
\nTherefore, it is a clear violation of the provision of Section 8(1) of the Act.\n<\/p>\n
\t7. It is further stated by the learned counsel for the petitioner that the
\nrepresentation sent on behalf of the detenu to the authorities was not at all
\nconsidered and the learned Additional Public Prosecutor has admitted that they
\nhave not considered the representation.  Further, it is seen that after passing
\nthe detention order, the State Government ought to have sent the detention order
\nwith the relevant papers to the Central Government.  In this case, there is no
\nmaterial available on record to show that the State Government has sent all the
\nrelevant records as contemplated under Section 3(4) of the Act.  Section 3(4) of
\nthe Act reads as under:-\n<\/p>\n
\t“When any order is made or approved by the State Government under this
\nsection or when any order is made under this section by an officer of the State
\nGovernment not below the rank of Secretary to that Government specially
\nempowered under sub-section (1), the State Government shall, within seven days,
\nreport the fact to the Central Government together with the grounds on which the
\norder has been made and such other particulars as, in the opinion of the State
\nGovernment, have a bearing on the necessity for the order.”
\nIf the State Government does not send the same to the Central Government under
\nSection 3(4) of the Act, the Central Government cannot exercise its power for
\nrevocation of the order under Section 14 of the Act. Section 14 of the Act reads
\nas under:-\n<\/p>\n
\t“14. Revocation of detention orders.-\n<\/p>\n
\t(1) Without prejudice to the provisions of section 21 of the General
\nClauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked
\nor modified-\n<\/p>\n
\t\t(a) notwithstanding that the order has been made by an officer of a
\nState Government, by that State Government or by the Central Government;\n<\/p>\n
\t\t(b) notwithstanding that the order has been made by an officer of
\nthe Central Government or by a State Government, by the Central Government.
\n\t(2) The revocation or expiry of a detention order shall not bar the making
\nof a fresh detention order under section 3 against the same person in any case
\nwhere fresh facts have arisen after the date of revocation or expiry on which
\nthe Central Government or a State Government or an officer, as the case may be,
\nis satisfied that such an order should be made.”\n<\/p>\n
From a reading of the above provision, it is clear that when the order is
\napproved by the State Government under this Section, the State Government shall,
\nwithin seven days, report the fact to the Central Government together with the
\ngrounds on which the order has been made and such other particulars as, in the
\nopinion of the State Government, have a bearing on the necessity for the order.
\nThere is no dispute that in the present case, the State Government has not sent
\nall the relevant records as contemplated under Section 3(4) of the Act.
\nFurther, Section 14 of the Act also empowers the Central Government to revoke
\nthe Detention Order.  If the State Government does not send the same to the
\nCentral Government under Section 3(4) of the Act, the Central Government cannot
\nexercise its power for revocation of the order under Section 14 of the Act.
\nTherefore, it is a clear violation of Section 3(4) of the Act.  The said
\nprovisions are the subject matter of interpretation in H.C.P. (MD)No.513 of 2011
\ndated 3.8.2011 wherein this Court considered the earlier judgment of this Court
\nmade in H.C.P.(MD)No.4 of 2011 dated 23.03.2011 in the case of J.Susila  v. The
\nAdditional Secretary, Government of India, Ministry of Consumer Affairs, Food
\nand Public Distribution (Department of Consumer Affairs), New Delhi and others,
\nin which it is stated in Paragraph-8 as under:-\n<\/p>\n
\t“8.Under Section 3(4)  of the prevention of Blackmarketing and Maintenance
\nof Supplies of Essential Commodities Act, 1980 (“Act” in short), the State
\nGovernment shall, within seven days, report the order made by the State
\nGovernment along with the entire particulars, to the Central Government. Under
\nSection 14 of the Act, the Central Government may revoke or modify the order of
\ndetention. The detenu had made a representation to the Central Government on
\n07.12.2010 and the same was addressed to the Secretary of Central Government
\nthrough the Superintendent of Prison, Palayamkottai. In the counter filed by the
\nUnion of India, the first respondent herein, it is stated that the Central
\nGovernment received the English version of the detention order, grounds of
\ndetention and approval of the State Government from Government of Tamil Nadu
\nvide letter dated 03.12.2010 except supporting documents. It is further stated
\nthat the Central Government received two representations dated 07.12.2010 in
\nTamil and thereafter, vide letter dated 14.12.2010, the Central Government
\nrequested the State Government to furnish the English version of the
\nrepresentations, and in spite of reminders, the State Government has not
\nsupplied the English version. It is categorically stated that due to non-receipt
\nof English version of the representations, it has not been possible for the
\nCentral Government to consider the representations. Section 14 of the Act
\nempowers the Central Government with a power to revoke the detention order and
\nit is the duty of the detaining authority to report the fact of detention order
\nto the Central Government together with grounds on which the order has been
\nmade. The procedure envisaged under Sub-Section 4 of Section 3 of the Act is not
\nan empty formality. The word used is “shall”. Therefore, it is mandatory that
\nthe State Government within seven days, report the fact of the order. It is also
\nmandatory on the part of the State Government to furnish the grounds on which
\nthe order has been made. Under Section 14 of the Act, the representation of the
\ndetenu dated 07.12.2010 ought to have been considered. The first respondent
\nwould state that they have received the detention order and other relevant
\npapers except the supporting documents, which is violative of Sub-Section 4 of
\nSection 3 of the Act. The first respondent would categorically state that due to
\nthe non-receipt of the English version of the representation, the Central
\nGovernment has not considered the representation of the detenu. Therefore, on
\nthis ground, the detention order is vitiated.”\n<\/p>\n
From a reading of the above, it is clear that this Court has categorically
\nstated that it is mandatory on the part of the State Government to send the
\nreport within a period of seven days. We also agree with the above view of the
\nDivision Bench of this Court. Therefore, in view of the violation of Section
\n3(4) of the Act, the order of detention is liable to be set aside.\n<\/p>\n
\t8. Further, the Supreme Court in the case of Kamleshkumar Ishwardas Patel
\nv. Union of India reported in (1995) 4 SCC 51, considered the scope of
\nprevention and detention and held in paragraph-48 as under:-
\n\t“48.By order dated 27-7-1993<\/p>\n
made under Section 3 of the COFEPOSA Act by Shri Mahendra Prasad, Joint
\nSecretary to the Government of India, an officer who had been specially
\nempowered under Section 3(1) of the COFEPOSA Act Jayantilal Somchand Shah, the
\nhusband of the appellant, was ordered to be detained. The writ petition filed by
\nthe appellant challenging the said detention was dismissed by the Bombay High
\nCourt by judgment dated 27-10-1993. One of the contentions that has been urged
\non behalf of the appellant before this Court was that he had addressed a joint
\nrepresentation dated 14-9-1993 to the detaining authority, the Central
\nGovernment and the Advisory Board and the same was submitted through the
\nSuperintendent, Bombay Central Prison and that the said representation was
\nrejected by the Central Government and it was not considered and decided
\nindependently by the detaining authority himself. These facts are not disputed
\non behalf of the respondents. Since the appellant had submitted a representation
\nto the detaining authority, namely, the officer who was specially empowered to
\nmake an order of detention, and the said officer did not consider the
\nrepresentation there has been a denial of the constitutional safeguard
\nguaranteed under Article 22(5) of the Constitution. As a result the detention of
\nthe appellant has to be held to be illegal and the said appeal has to be
\nallowed.”\n<\/p>\n
\t9. The above judgment of the Supreme Court supports the case of the
\npetitioner on the ground that the first and second respondent-Central Government
\nought to have considered the representation of the detenu, otherwise, it will
\namount to denial of the constitutional safeguard guaranteed under Article 22(5)
\nof the Constitution. In the present case, the detenu had sent a representation
\ndated 28.06.2011 to all the respondents,  and therefore, they ought to have
\nconsidered the above representation as per the above judgment of the Supreme
\nCourt. Non-consideration of the representation on the part of the respondents is
\nagainst the above judgment of the Supreme Court.\n<\/p>\n
\t10. In the case of Rekha v. State of Tamil Nadu<\/a> reported in (2011) 5 SCC
\n244, the Supreme Court has held in paragraph-39 as under:-
\n\t“39. Personal liberty protected under Article 21 is so sacrosanct and so
\nhigh in the scale of constitutional values that it is the obligation of the
\ndetaining authority to show that the impugned detention meticulously accords
\nwith the procedure established by law. The stringency and concern of judicial
\nvigilance that is needed was aptly described in the following words in Thomas
\nPelham Dale case: (QBD p.461)
\n“Then comes the question upon the habeas corpus. It is a general rule, which has
\nalways been acted upon by the courts of England, that if any person procures the
\nimprisonment of another he must take care to do so by steps, all of which are
\nentirely regular, and that if he fails to follow every step in the process with
\nextreme regularity the court will not allow the imprisonment to continue.”
\nAfter considering the overall view and the facts and circumstances of the case,
\nwe are of the considered view that in the present case, there is violation of
\nthe provisions of Section 3(4) of the Act and also non-consideration of the
\nrepresentation of the detenu by the respondents 1 to 3. After considering the
\nprinciples enunciated by this Court as well as the Supreme Court in the
\njudgments cited supra, we are of the view that the order of detention passed by
\nthe detaining authority is liable to be set aside.\n<\/p>\n
\t11. In the result, the Habeas Corpus Petition is allowed and the order of
\ndetention passed by the third respondent in his  Proceedings
\nP.B.M.M.S.E.C.\/ACT\/C.M.P.No.02\/2011 dated 23.06.2011  is set aside. The detenu
\nis directed to be released forthwith unless his presence is required in
\nconnection with any other case.\n<\/p>\n
asvm<\/p>\n
To\n<\/p>\n
1.The Additional Secretary,
\n  Government of India,
\n  Ministry of Consumer Affairs,
\n   Food and Public Distribution
\n  (Department of Consumer Affairs),
\n  Room No.270, Krishi Bhavan,
\n  New Delhi – 110 001.\n<\/p>\n
2.The Secretary,
\n  Government of Tamilnadu,
\n  Co-operation, Food and
\n  Consumer Protection Department,
\n  Secretariat,
\n  Chennai – 9.\n<\/p>\n
3.The District Collector and
\n   District Magistrate,
\n  Trichy District,
\n  Trichy.\n<\/p>\n
4.The Inspector of Police,
\n  CS, CID, Tiruchirapalli.\n<\/p>\n
5.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-33671","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSharmila vs The Additional Secretary on 22 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sharmila-vs-the-additional-secretary-on-22-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sharmila vs The Additional Secretary on 22 August, 2011 - 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