{"id":90466,"date":"2005-11-16T00:00:00","date_gmt":"2005-11-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-m-s-mohiadeen-sahib-vs-the-state-of-tamil-nadu-rep-on-16-november-2005-2"},"modified":"2015-03-01T11:12:16","modified_gmt":"2015-03-01T05:42:16","slug":"p-m-s-mohiadeen-sahib-vs-the-state-of-tamil-nadu-rep-on-16-november-2005-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-m-s-mohiadeen-sahib-vs-the-state-of-tamil-nadu-rep-on-16-november-2005-2","title":{"rendered":"P.M.S. Mohiadeen Sahib vs The State Of Tamil Nadu Rep on 16 November, 2005"},"content":{"rendered":"
Madras High Court<\/div>\n
P.M.S. Mohiadeen Sahib vs The State Of Tamil Nadu Rep on 16 November, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDATED: 16\/11\/2005  \n\nCORAM   \n\nTHE HON'BLE MR. JUSTICE P. SATHASIVAM         \nAND  \nTHE HON'BLE MR. JUSTICE S.K. KRISHNAN        \n\nH.C.P.No.777 of 2005 \nand HCMP.No.143 of 2005   \n\nP.M.S. Mohiadeen Sahib                                 .. Petitioner\n\n-Vs-\n\n1. The State of Tamil Nadu rep.\n   by the Secretary to Government,\n   Public (SC) Department\n   Fort St. George\n   Chennai 600 009.\n\n2. The Union of India rep. by\n   The Secretary to the Government\n   Ministry of Finance\n   Department of Revenue (COFEPOSA UNIT)    \n\n\n3. The Superintendent of Central Prison\n   Central Prison, Chennai 600 003.             .. Respondents\n\n\n                Petition filed under Article 226 of the Constitution of  India\npraying for issuance of a writ of Habeas Corpus as stated therein.\n\nFor petitioner :  Mr.  B.  Kumar, Sr.  Counsel\n                for Mr.  S.  Palanikumar\n\nFor respondents:  Mr.  A.  Kandasamy \n                Addl.  Public Prosecutor for R.1&3\n\n                Mr.  P.  Kumaresan\n                A.C.G.S.C.  For R.2\n:ORDER  \n<\/pre>\n
        ( Order of the Court was made by P.  Sathasivam,J.)<\/p>\n
        The detenu  by  name  P.M.S.   Mohiadeen Sahib, who was detained under
\nSection 3 (1)(ii) of the Conservation of Foreign Exchange  and  Prevention  of
\nSmuggling  Activities  Act,  1974  (  in short “COFEPOSA Act”) by the impugned
\nproceedings  of  the  first  respondent  in  G.O.No.SR.1\/633-3\/20  05,   dated
\n08.07.2005, challenges the same in this petition.\n<\/p>\n
        2.  Heard Mr.    B.  Kumar, learned senior counsel for the petitioner,
\nMr.  A.  Kandasamy, learned Additional Public Prosecutor for respondents 1 and
\n3 and Mr.  P.   Kumaresan,  learned  Additional  Central  Government  Standing
\ncounsel for the second respondent.\n<\/p>\n
        3.    Though  several  grounds  have  been  raised  in  the  affidavit
\nquestioning the impugned detention order,  at  the  foremost,  learned  senior
\ncounsel appearing for the petitioner would submit that though the predetention
\nrepresentation was made on 04.07.2005, which was sent to the Superintendent of
\nCentral  Prison,  Chennai,  who  forwarded  the  same  to  the  Law  Minister,
\nGovernment of Tamil Nadu on 05.07.2005 itself, the Detaining Authority has not
\nconsidered the pre-detention representation made by the petitioner, but passed
\nthe detention order on 08.07.2005.  It is also contended that even  though  in
\nthe  representation  dated  21.07.2005 in para 6 there is a specific reference
\nregarding the pre-detention representation dated 04.07.2005 addressed  to  the
\nLaw  Minister,  there  was no proper consideration of the representation dated
\n21.07.2005.  It is also his contention  that,  inasmuch  as  the  predetention
\nrepresentation  dated 04.07.2005 was not placed, considered and disposed of in
\nthe manner known to law by the Detaining  Authority,  the  ultimate  detention
\norder cannot  be sustained.  He further contended that the Detaining Authority
\nhas not taken sincere and serious efforts in  considering  the  representation
\ndated   21.07.2005,  particularly  when  there  is  a  specific  reference  to
\npre-detention representation dated  04.07.2005.    In  support  of  the  above
\ncontentions, the learned senior counsel has relied on the following case laws.\n<\/p>\n
(i)John Martin vs.  State of West Bengal (AIR<\/a> 1975 SC 775);\n<\/p>\n
(ii)A.C.Razia vs.  Govt., of Kerala<\/a> (2004 SCC Criminal 618);\n<\/p>\n
(iii) T.M.Syed Ali vs.  State of Tamilnadu(1999 (2) CTC 490) and\n<\/p>\n
(iv) Unreported  judgment  of this Court dated 02.08.1993 made in HCP.  No.138
\nof 1993.\n<\/p>\n
        4.  On the other hand, learned Additional Public Prosecutor  appearing
\nfor respondents 1 and 3 by taking us through the grounds of detention, counter
\naffidavit  and  placing relevant files, would submit that till detention order
\nwas passed, the representation addressed to  the  Law  Minister  need  not  be
\nconsidered, since  the  Sponsoring  Authority  is Customs Department.  He also
\ncontended that inasmuch as the predetention  representation  dated  04.07.2005
\nwas  not  sent to the authority concerned and not available for consideration,
\nthe disposal of the representation dated 21.07.2005 cannot be faulted with.\n<\/p>\n
        5.  We have carefully considered the rival contentions and perused the
\nrelevant materials.\n<\/p>\n
        6.  In the light of the limited issue involved, there is  no  need  to
\ntraverse  all the factual details as stated in the affidavit as well as in the
\ncounter affidavit.  It is brought  to  our  notice  that  on  04.07  .2005,  a
\nrepresentation from P.M.S.  Mohiadeen Sahib, detenu in this case, addressed to
\nthe  Law  Minister,  Government  of  Tamil  Nadu  Chennai-9,  was  sent to the
\nSuperintendent of Central Prison, Chennai 600 003 .  The postal acknowledgment
\nshows that the said article  was  delivered  by  way  of  Speed  Post  to  the
\naddressee,   i.e.,   the   Superintendent  of  Central  Prison,  Chennai-3  on
\n05.07.2005.  On instructions, the learned  Additional  Public  Prosecutor  has
\nstated  that the Superintendent of Central Prison, Chennai-3 has forwarded the
\nsaid representation to the Law Minister, Government of Tamil Nadu, Chennai – 9
\non 05.07.2005 itself.  It is to be noted that the impugned detention order was
\npassed on 08.07.2005.  Even if it is accepted that the said letter might  have
\nbeen received by the Law Minister on the next day, i.e., on 06.0 7.2005, still
\nthe  Detaining  Authority had two days, before passing the order of detention.
\nIt is the grievance of the petitioner that the  said  representation  was  not
\neven placed before the Detaining Authority.\n<\/p>\n
        7.   It  is also relevant to refer the representation dated 21.07.2005
\nmade by  the  detenu  on  receipt  of  grounds  of  detention.      The   said
\nrepresentation was   made   from   Central   Prison,  Chennai  3.    The  said
\nrepresentation  was  addressed  to  the  Secretary,  Law  and  Order  (Public)
\nDepartment, Secretariat,  Chennai  9.    It  is  not  in dispute that the said
\nrepresentation has been received by the concerned authority and considered  by
\nthe Detaining Authority.  In this regard it is relevant to refer para 6 (4) of
\nthe said representation, which reads as under.\n<\/p>\n
(Tamil version deleted)<\/p>\n
It is clear from the above extract that there is a specific reference  to  the
\nearlier  representation  dated  04.07.2005,  which  was  addressed  to the Law
\nMinister by the detenue from Central Prison through the  concerned  authority.
\nIt is specifically stated that the said representation has not been considered
\nby the Detaining Authority.\n<\/p>\n
        8.   In this regard, it is also useful to refer the stand taken by the
\nAdditional  Secretary  to  Government,  Public  Law  and   Order   Department,
\nSecretariat, Chennai  9,  in  his counter affidavit dated 25.10.2005.  In para
\n15, it is specifically stated that the Hon’ble Minister for Law considered and
\nrejected the representati on on 12.08.2005 and the same was intimated  to  the
\ndetenu on 13.08.2005, which was received by him on the same day.  It is not in
\ndispute and also clear from the information furnished in the counter affidavit
\nthat the concerned authority is Law Minister.  We have already referred to the
\npredetention representation addressed to the Law Minister, Government of Tamil
\nNadu,  Secretariat,  Chennai  9,  which  was  forwarded  to the addressee on 0
\n5.07.2005 itself by the Superintendent, Central Prison, Chennai.   In  such  a
\ncircumstance,  even  if the said representation said to have been forwarded by
\nthe Superintendent, Central  Prison  on  05.07.2005  was  not  available,  the
\nDetaining Authority, while considering the representation dated 21.07.2005, in
\nthe  light  of  the  specific averment in para 6, could have verified from the
\nrecords about the fate of the earlier representation said to have been sent on
\n05.07.2005.  Though the learned Additional Public Prosecutor has placed a note
\nfile, to show that no such representation dated  04.07.2005  was  received  by
\nthem,  a  perusal  of the said file clearly shows that there is no information
\nwhether any effort was made to verify from the office of the addressee,  viz.,
\nLaw Ministry   that   any  such  representation  was  received.    In  such  a
\ncircumstance, we are of the view that the stand taken by the first  respondent
\ncannot be accepted.\n<\/p>\n
        9.   Now,  let us consider the decisions of the Supreme Court and this
\nCourt cited by the learned senior counsel for the petitioner  with  regard  to
\nthe above aspect.    In  the  case  of  John  Martin vs.  State of West Bengal<\/a>
\nreported in AIR 1975 S.C.  775, a Three Judge Bench  of  the  Hon’ble  Supreme
\nCourt, while considering the representation of the detenu, has concluded,<\/p>\n
“3.  …..    This, however, does not mean that the appropriate Government can
\nreject the representation of the detenu in a casual or mechanical manner.  The
\nappropriate Government  must  bring  to  bear  on  the  consideration  of  the
\nrepresentation an unbiased mind.  There should be, as pointed out by the Court
\nin   Haradhan   Saha’s   case,  “a  real  and  proper  consideration”  of  the
\nrepresentation by the appropriate Government.   We  cannot  over-emphasis  the
\nneed  for  the closest and most zealous scrutiny of the representation for the
\npurpose of deciding whether the detention of the petitioner is justified.  ”\n<\/p>\n
        10.  The law laid down in John Martin’s case was subsequently followed
\nin the case of A.C.  Razia vs.  Government of  Kerala<\/a>  reported  in  2004  SCC
\n(Crl.) 618, which is also a Three Judge Bench decision.  While considering the
\npower  of the Central Government in considering the representation made by the
\ndetenu, their Lordships have concluded,<\/p>\n
“22.  ……  The exercise of the power under Section 11 should not be a  mere
\nformality or  a  farce.    Care  and vigilance should inform the action of the
\nGovernment while discharging its supervisory responsibility.  As  observed  in
\nHaradhan Saha  case (1974 SCC (Crl.)816) and reiterated in K.M.  Abdulla Kunhi
\ncase (1991 SCC (Crl.)613, what is required is “real and proper consideration”.
\nThe following observation in Abdul Karim (1969 (1) SCC 433) are quite opposite
\nin this context.\n<\/p>\n
        “But it is a necessary implication of the language  of  Article  22(5)
\nthat  the  State  Government  should  consider  the representation made by the
\ndetenu as soon as it is made, apply its mind to it  and,  if  necessary,  take
\nappropriate action.    In  our  opinion,  the constitutional right to a proper
\nconsideration of the representation by the authority to whom it is made.   The
\nright  of  representation  under  Article  22 (5) is a valuable constitutional
\nright and is not a mere formality.”\n<\/p>\n
        23.  The same proposition has been highlighted by Rajendra Babu,J.  By
\nobserving that “there should be full and independent application of mind.  ”
\nEven in the dissent judgment, Hon’ble Mr.  Justice S.B.  Sinha,  has  accepted
\nthe above proposition and concluded,<\/p>\n
“50.  It is therefore, trite that all facts which are relevant for the purpose
\nof giving relief to the detenu are required to be considered.  In that view of
\nthe  matter, the quality of an order passed by the Central government in terms
\nof Section 11(1)(b) of the Act cannot be different from that of the  authority
\nwhich had passed the order.”\n<\/p>\n
The  above  decisions  make  it  clear  that considering the representation of
\ndetenu is not a mere formality, but the same has  to  be  considered  with  an
\nunbiased  mind  and  closest  and  most  zealous  scrutiny  for the purpose of
\ndeciding whether the detention is justified or not.\n<\/p>\n
        11.  It is also relevant to refer the Division Bench decision of  this
\nCourt in the  case of T.M.  Syed Ali vs.  State of Tamil Nadu<\/a> reported in 1999
\n(II) CTC 490, wherein their  Lordships  have  held  that  representation  made
\ndenying very occurrence before passing of detention order has to be considered
\nby the  detaining  authority.    They  also  held  that  it is the duty of the
\nSponsoring Authority to forward the same to  the  Government  and  failure  to
\nconsider such representation would vitiate the detention order.\n<\/p>\n
        12.   In HCP.No.138 of 1993 dated 02.08.1993, a contention was raised,
\nviz., the detenu forwarded a representation on  21.01.1993  to  the  Detaining
\nAuthority,  wherein  he  had  asked  for  copy  of the retraction letter dated
\n19.11.1992.  His representation was rejected on 16.02.1993,  stating  that  no
\nsuch retraction  was  received  by  the  Sponsoring  Authority.    The further
\ncontention was that the receipt of the retraction letter  was  later  admitted
\nand  thus  lack of proper consideration and disposal of the representation was
\nevident.  With reference to the said contention,  the  Division  Bench,  after
\nconsidering the statement of the learned Public Prosecutor has concluded,<\/p>\n
“6.  ….    The detaining authority had acted on the basis of the information
\nfurnished by the sponsoring authority.   We  cannot  overlook  that  the  very
\nsystem  contemplated  under law, puts the responsibility on every one of these
\nauthorities, so that the constitutional  right  of  the  detenu  was  not  get
\nthwarted.   If  there  is  negligence  of  callciness  on  the part of any one
\nauthority that will  certainly  enure  in  favour  of  the  detenu.    If  the
\nsponsoring  Authority  had  not furnished correct information to the Detaining
\nAuthority, either due to negligence or with an ulterior purpose  deliberately,
\nit can  make  no  difference for ultimately the sufferer is the detenu.  It is
\nsettled law that  consideration  and  representation  must  be  effective  and
\npurposeful.   If  the  detaining  authority  had the benefit of the retraction
\nletter sent by the detenu, the manner in which the representation  might  have
\nbeen disposed  of  may  still  loom  large.  On that single ground of improper
\nriskless rejection of representation, detenu is bound to succeed….  ”\n<\/p>\n
        13.  In the light of the above principles, we are  of  the  view  that
\nthough  the  detenu has made pre-detention representation on 04.07.2005, which
\nwas received by the Superintendent, Central Prison, Chennai and  forwarded  to
\nthe addressee, Law Minister, Government of Tamil Nadu on 05.07.2005 itself, in
\nview of the fact that the same had been reiterated in the representation dated
\n21.07.2005,  the  Detaining  Authority  ought  to  have  verified  the earlier
\nrepresentation and passed the order after due consideration.  We are satisfied
\nthat the Detaining Authority failed to consider these relevant aspects and the
\ndetenu is entitled to succeed.\n<\/p>\n
        Under these circumstances, the order of  detention  impugned  in  this
\npetition is  set aside and the petition is allowed.  The petitioner\/ detenu is
\ndirected to be set at liberty forthwith from the custody unless he is required
\nin connection with any other case.\n<\/p>\n
                In view of disposal of the main petition, connected HCMP.,  is
\nclosed.\n<\/p>\n
Index:Yes
\nInternet:Yes<\/p>\n
kh<\/p>\n
To\n<\/p>\n
1.  The Secretary to Government,
\nState of Tamil Nadu
\nPublic (SC) Department
\nFort St.  George
\nChennai 600 009.\n<\/p>\n
2.  The Secretary to Government
\nUnion of India
\nMinistry of Finance
\nDepartment of Revenue (COFEPOSA UNIT)     <\/p>\n
3.  The Superintendent of Central Prison
\nCentral Prison, Chennai 600 003.\n<\/p>\n
4.  The Director General of Police
\nChennai 4.\n<\/p>\n
5.  The Commissioner of Police,
\nGreater Chennai, Chennai 8.\n<\/p>\n
6.  The Additional Director General
\nof Prisons, Egmore, Chennai 8.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court P.M.S. Mohiadeen Sahib vs The State Of Tamil Nadu Rep on 16 November, 2005 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. […]<\/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-90466","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nP.M.S. 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