1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23.03.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Habeas Corpus Petition(MD)No.4 of 2011 J.Susila .. 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 to Government, Food, Co-operation and Consumer Protection Department, Secretariat, Chennai-600 009. 3.The District Magistrate and District Collector, Thoothukudi District, Thoothukudi. 4.The Inspector of Police, Civil Supply CID, Tuticorin, Tuticorin District. .. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Habeas Corpus calling for the records in pursuant to the proceedings of the 3rd respondent in P.A. to D.S.O. Confdl. No.08/2010 dated 23.11.2010 and quash the same and consequently direct the respondents to produce the detenu, Jeyaraj, S/o.Chellaiah, aged about 37 years who is now detained in the Central Prison, Palayamkottai, Tirunelveli, before this Court and set him at liberty. For Petitioner : Mr.M.Subash Babu For Respondent No.1 : Mr.S.R.Neelakandan For Respondent Nos.2 to 4 : Mr.M.Daniel Manoharan, Addl.Public Prosecutor O R D E R (Order of the Court was made by G.M.AKBAR ALI, J.) Challenge is made to the order of detention passed by the third respondent in his Proceedings P.A. to D.S.O.Confdl.08/2010 dated 23.11.2010 whereby the petitioner's husband by name Jeyaraj was ordered to be detained under the provisions of Prevention of Black Marketing and https://hcservices.ecourts.gov.in/hcservices/ 2 Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act No.7 of 1980) branding him as a "BLACK MARKETEER". 2. The detention order was passed on 23.11.2010. There are two adverse cases and one ground case against the detenu. The first adverse case was dated 05.08.2010 and the second adverse case was dated 11.08.2010. The ground case is that on 19.11.2010, the detenu was in possession of 21 plastic bags of PDS ration rice, each weighing about 50 Kgs. While he was trying to smuggle the said PDS rice bags out of the State, the police party caught the detenu. Thereafter the police have registered a case against the detenu in Crime No.356/10 under Section 6 (4) of TNSC (RDCS) Order 1982 r/w 7(1) a(ii) of E.C. Act 1955 and remanded him to judicial custody. The detaining authority had considered the relevant documents and satisfied that the detenu has to be detained and accordingly, clamped the detention order on him. Aggrieved over the same, the wife of the detenu has filed this present HCP. 3.Mr.M.Subash Babu, learned counsel for the petitioner would submit that the detenu is entitled to make a representation to the Central Government and in fact, he made a representation dated 07.12.2010 and the same was not considered, due to the failure on the part of the third respondent to furnish the English version of the representation along with supporting documents to the Central Government. Learned counsel for the petitioner would further submit that non-supply of the English version of the representation is illegal and the petitioner has been deprived of an opportunity to be considered by the Central Government. Learned counsel for the petitioner relied on the judgment of the Supreme Court in the case of Pebam Ningol Mikoi Devi v. State of Manipur [(2011) 1 MLJ (Crl) 572 (SC)], in support of his contention. 4.Apart from that, the learned counsel for the petitioner pointed out that in the ground case, bail application has been filed by the detenu and it is pending, but the detaining authority had prejudged that there was likelihood of the detenu coming out on bail. Learned counsel for the petitioner relied on the judgment of this Court in the case of A.Murugesan vs. Secretary to Government, Food, Co-Operation and Consumer Protection Department, Chennai - 600 009 and others [(2010) 1 MLJ 950] in support of his contention. 5.Therefore, according to the counsel for the petitioner, the detention order has to be set aside on the above two grounds. 6.Per contra, the learned Additional Public Prosecutor, would submit that the English version of the representation was forwarded to the Central Government along with the booklet and therefore, there is no wrong on the part of the third respondent. Learned Additional Public Prosecutor also pointed out that the detenu has come out on bail in the adverse cases and hence, cogent material was available for the detaining authority to satisfy itself that there was every likelihood of the detenu coming out on bail. 7.Heard the learned counsel on either side and perused the materials available on record. https://hcservices.ecourts.gov.in/hcservices/ 3 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. 9.With regard to the judgment of the Supreme Court in the case of Pebam Ningol Mikoi Devi v. State of Manipur (cited supra), relied on by the learned counsel for the petitioner, since it deals with the question as to whether the unexplained delay in forwarding a representation of detenu under National Security Act is violative of Article 22(5) of the Constitution, it is not relevant to the facts of the present case and hence it will not apply to the present case. 10.Furthermore, when the bail application in the ground case is pending, the detaining authority had satisfied itself that there is every likelihood of the detenu coming out on bail. In the judgment of this Court in the case of A.Murugesan vs. Secretary to Government, Food, Co- Operation and Consumer Protection Department, Chennai - 600 009 and others [(2010) 1 MLJ 950], relied on by the learned counsel for the petitioner, it has been held as under:- https://hcservices.ecourts.gov.in/hcservices/ 4 "11. Apart from the above, in the instant case, it is an admitted position that he has not made any bail application before any Court of criminal law in Crime No.298 of 2009 and the same is also recorded by the detaining authority. But, at the same time, the authority would further add that bail was likely to be granted, and if he is let at large, his activities would be prejudicial to the public distribution system. While not even a bail application was filed before a Court of criminal law, it would be too early for the authority to record that he is likely to come out on bail either, or if he is let to remain at large,he will indulge in such activities in future which would be prejudicial to the maintenance of supplies of commodities essential to the community. This would be indicative of the non-application of mind, and it is only an expression of the impression made by the authority without any material, much less cogent material whatsoever. Under the circumstances, the order would suffer in the above grounds. The contention putforth by the learned counsel for the petitioner that in four adverse cases, he was either admonished or actually fined cannot be a reason to set aside the order. But, on the two grounds mentioned above, the order is liable to be set aside." The detaining authority cannot prejudge that the detenu would come out on bail, when the bail application is pending. This observation of the detaining authority, in the considered opinion of this Court, reveals the non-application of mind and it is based on pure presumptions. Following the principles enunciated in the judgment of this Court in (2010) 1 MLJ 950 supra, this Court is of the considered opinion that the detaining authority had passed the impugned order of detention without applying its mind and hence the order of detention is liable to be set aside on this ground also. 11.In view of the above, this habeas corpus petition is allowed and the order of detention passed by the third respondent in his Proceedings P.A. to D.S.O. Confdl. No.08/2010 dated 23.11.2010 is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. sd/- Assistant Registrar (C.O) /True Copy/ Sub Assistant Registrar (C.S) 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. https://hcservices.ecourts.gov.in/hcservices/ 5 2.The Secretary to Government, Food, Co-operation and Consumer Protection Department, Secretariat, Chennai-600 009. 3.The District Magistrate and District Collector, Thoothukudi District, Thoothukudi. 4.The Inspector of Police, Civil Supply CID, Tuticorin, Tuticorin District. 5.The Joint Secretary to Government, Public (Law & Order), Fort St.George, Chennai – 9. 6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 7.The Superintendent, Central Prison, Palayamkottai. + 1 cc to Mr.M.Subash Babu, Advocate, SR No.7868 HCP(MD)No.4 of 2011 23.03.2011 KM RJ/18.4.11 5p/9c https://hcservices.ecourts.gov.in/hcservices/