IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.04.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH H.C.P.No.75 of 2008 Thangavelan .. Petitioner -Vs- 1. The Secretary to the Government Food, Co-operation and Consumer Protection Department Chennai 600 009 2. The District Magistrate and District Collector Virudhunagar District Virudhunagar 3. The Addl.Secretary to the Government of India Food, Co-operation and Consumer Protection Department Room No.270, Krishi Bhavan New Delhi 110 001 .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Habeas Corpus, to call for the records in connection with the order of detention passed by the second respondent dated 05.01.2008 in Cr.M.P.No.1/2008 Black Marketeer against the petitioner's brother in law Prabhakaran, son of Somasundaram, aged about 46 years, who is confined at Central Prison, Madurai and set aside the same and direct the respondents to produce the detenu before this Hon'ble Court and set him at liberty. For Petitioner :: Mr.V.Parthiban For Respondents :: Mr.M.Babu Muthu Meeran Addl. Public Prosecutor for R1 & R2 Mr.P.Kumaresan, ACGSC for R3 https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the Court was delivered by D.MURUGESAN, J.) The petitioner is the brother-in-law of the detenu, who has been detained under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 7 of 1980) as a "Black Marketeer" by the order of the District Magistrate and District Collector, Virudhunagar District, Virudhunagar dated 5.1.2008. 2. The detention order came to be passed on the basis of the ground case registered in Virudhunagar Civil Supplies CID Cr.No.842 of 2007 under Section 6(4) of the TNSC (RDCS) Order, 1982 read with Section 7(1)(a)(ii) of the Essential Commodities Act, 1955. The grounds of detention do not refer to any adverse case in respect of the petitioner. In the ground case, it is averred that on 26.11.2007 at about 10.45 p.m., the Special Tahsildar, Flying Squad, Virudhunagar and his party and the Tahsildar, Aruppukottai and his party were on night patrol duty and on receipt of information, namely, that the rice meant for Public Distribution System were smuggled and kept in Anitha Modern Rice Mill belonging to one Thiru.Sudakar, the police party entered into the said mill and conducted check and found 182 bags of Public Distribution System boiled rice, each weighing 50 kgs., were loaded in a Ashok Leyland Lorry bearing Registration No.TN-41-H-1377 owned by one Smt.R.Manohari. On enquiry, it was revealed that the detenu had purchased the rice meant for Public Distribution System and had supplied to the said mill for being sold outside. 3. Mr.V.Parthiban, learned counsel for the petitioner has firstly submitted that the representation dated 14.1.2008 was disposed of only on 11.2.2008 and therefore there is a delay in disposal of the representation. 4. Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor has produced the pro-forma, wherein it is stated that the representation dated 14.1.2008 was received by the Government on 23.1.2008. Remarks were called on 24.1.2008. As 2.2.2008 and 3.2.2008 were holidays, the remarks were received on 4.2.2008 and thereafter the file was circulated and the final order was passed on 11.2.2008. On perusal of the above pro-forma, we find no delay in the disposal of the representation. Accordingly, the first contention is rejected. 5. Secondly, the learned counsel for the petitioner submitted that there was no imminent necessity for passing the detention order. In this context, the learned counsel would submit that the occurrence had taken place on 26.11.2007 and the detenu was arrested on 28.11.2007 and the certificate dated 29.11.2007 of the Food Inspector was obtained on 30.11.2007. However, the sponsoring authority has forwarded the report only on 2.1.2008 after nearly one month. The delay on the part of the sponsoring authority in not https://hcservices.ecourts.gov.in/hcservices/ reporting the matter to the detaining authority for consideration is unexplained and therefore the detention order is vitiated. 6. The learned Additional Public Prosecutor would submit that though the detenu was arrested on 28.11.2007, he filed a bail application in Cr.M.P.No.5610 of 2007 on the file of the learned Judicial Magistrate, Aruppukottai and the same was dismissed on 4.12.2007. Thereafter, he filed another bail application before the learned Principal Sessions Judge, Virudhunagar in Cr.M.P.No.3663 of 2007 and the same was dismissed on 11.12.2007. Again he filed another bail application before the learned Principal Sessions Judge, Virudhunagar in Cr.M.P.No.51 of 2008 on 2.1.2008 and the same was pending. Only in this context, the sponsoring authority had waited and thereafter sent the report dated 2.1.2008. 7. We have considered the above explanation and in our considered view, the delay in sending the report by the sponsoring authority has been properly explained. As the detenu was filing repeated bail applications before the learned Judicial Magistrate and the learned Principal Sessions Judge, the sponsoring authority did not forward the report immediately and only for the reason that a repeated attempt to come out on bail was made by the detenu, he thought it fit to report the matter to the detaining authority to consider the detention of the petitioner. Under similar circumstances, the Apex Court in the judgment in Sheetal Manoj Gore v. State of Maharashtra and others (2006) 3 SCC (Crl.) 314 had considered the explanation at the level of the detaining authority in passing the order of detention atleast for six months from the date of receipt of the report from the sponsoring authority. In matters like this, the Court has to only consider the fact as to whether the detaining authority or the sponsoring authority has proper explanation for such delay, as a mere delay by itself would not vitiate the order of detention. Hence we reject the second contention also. 8. Mr.V.Parthiban, learned counsel for the petitioner would lastly contend that when the detenu had filed a bail application before the learned Judicial Magistrate, Aruppukottai in Cr.M.P.No.5610 of 2007, the sponsoring authority namely, the Inspector of Police, Virudhunagar Civil Supplies CID had represented that the detenu was already involved in five or more cases for the alleged same offence and also HS 1/97. Having regard to the above submission only, his bail application was rejected. In fact the detenu had made a specific plea in his application that there were no other cases pending against him. Similarly, when the bail application was considered by the learned Principal Sessions Judge, Virudhunagar in Cr.M.P.No.3663 of 2007, it was represented on behalf of the sponsoring authority that the detenu is a habitual offender and he is involved in six other cases of similar kind of offence. Having regard to the above, the application for bail was rejected by the learned Principal Sessions Judge in his order dated 11.12.2007. 9. Mr.M.Babu Muthu Meeran, learned Additional Public https://hcservices.ecourts.gov.in/hcservices/ Prosecutor, however, submitted that those materials were placed before the Courts only on the basis of the confessional statement given by the detenu on 28.11.2007. 10. We have gone through the confessional statement as well as the orders of the learned Judicial Magistrate, Aruppukottai and the learned Principal Sessions Judge, Virudhunagar rejecting the bail applications of the detenu. Insofar as the orders rejecting the bail applications are concerned, they contain reasons, namely, atleast five or six cases are pending against the detenu. It has been now well settled that furnishing the copy of either the application for bail or the order rejecting the bail application is not an absolute rule in all cases. But in the event the bail application is rejected giving some reasons which ultimately have adverse effect on the detenu, such copy of the order rejecting the bail application must be furnished to the detenu. This proposition of law has been laid down by the Apex Court in the judgment in Abdul Sathar Ibrahim Manik v. Union of India and others (AIR 1991 SC 2261), wherein in paragraphs 12(4), (5) & (6), it has been observed as follows:- "12(4) Accordingly the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu's right of being afforded a reasonable opportunity guaranteed under Article 22(5) when it is clear that the authority has not relied or referred to the same. 12(5) When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation. Only when the detaining authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India. Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court. 12(6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu." 11. In this case, the bail applications were rejected not only https://hcservices.ecourts.gov.in/hcservices/ by the learned Judicial Magistrate, Aruppukottai, but also by the learned Principal Sessions Judge, Virudhunagar solely on the ground that the detenu is also involved in five or six other similar cases. In that event, the respondents ought to have furnished the copies of the order rejecting the bail applications. In the representation made on behalf of the detenu dated 14.1.2008, the counsel has prayed for furnishing the copies of the order rejecting the bail. The said representation has been rejected by the Government on 11.2.2008 solely on the ground that those copies are Court documents and therefore the detenu is not entitled for the same. In our opinion, the rejection of the representation made on behalf of the detenu seeking copies of the order rejecting the bail applications has caused prejudice to the detenu, as his right to make an effective representation has been deprived of. That apart, in the very same representation, the counsel has also prayed for furnishing the details of five or six similar cases where the detenu is allegedly involved. However, there is no consideration on the said request while the representation was rejected. Of course, an attempt is made by the learned Additional Public Prosecutor to explain that those statements were made only on the basis of the confessional statement given by the detenu on 28.11.2007. In our opinion, it is not sufficient for the disposal of the representation, as it is not even stated that those statements relating to five or six similar cases were made to the Court on the basis of the confessional statement. Nevertheless, right to make representation is a fundamental right guaranteed under Article 22(5) of the Constitution of India and such a right is not a mere farce, and unless the detenu is provided with the documents which adversely affect him, he will not be in a position to make an effective representation. In that context, the statement made before the Courts relating to the involvement of the detenu in five or six similar cases assumes importance and therefore the non furnishing of the details of the statement could be considered only as non-application of mind on the part of the respondents while disposing the representation and on the above two grounds, the petitioner is entitled to succeed. 12. In view of the above, the habeas corpus petition is allowed and the impugned order of detention dated 5.1.2008 passed by the second respondent is set aside. The detenu is directed to be set at liberty forthwith, unless he is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ss https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government of Tamil Nadu Food, Co-operation and Consumer Protection Department Fort St.George Chennai 600 009 2. The District Magistrate and District Collector Virudhunagar District Virudhunagar 3. The Addl.Secretary to the Government of India Food, Co-operation and Consumer Protection Department Room No.270, Krishi Bhavan New Delhi 110 001 4. The Public Prosecutor High Court, Madras 5. The Superintendent, Central Prison, Madurai. (In duplicate for Communication to detenu) 6.The Joint Secretary to Govt. Public (Law and Order) Fort St. George, Chennai-9. +1cc to Mr.C.Prakasam, Advocate Sr 19705 BV (CO) km/21.4. H.C.P.No.75 of 2008 https://hcservices.ecourts.gov.in/hcservices/