1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:22.09.2011 CORAM: THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA and THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Habeas Corpus Petition(MD)No.569 of 2011 Abeetha Beevi :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 Bavan, New Delhi-110 001. 2.The Secretary, Government of Tamil Nadu, Co-operation, Food and Consumer Protection Department, Secretariat, Chennai-9. 3.The Commissioner of Police, Trichy City, Trichy. 4.The Inspector of Police, CS.CID, Trichy. :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 C.P.O./TRC/B.M./D.O.No.05/2011 dated 05.07.2011 and quash the same as illegal and produce the detenu, namely Raja Mohammed @ Syed Mohammed, S/o.Sheik Abdullah, aged about 53 years, who is confined in Central Prison, Trichy before this Court and set him at liberty. For petitioner :Mr.T.Lenin Kumar for Mr.S.Mahendrapathy For respondents:Mr.D.Nallathambi, CGSC for R1 Mr.P.Jyothi,Additional Public Prosecutor for R2 to R4 ORDER (Order of the Court was made by P.P.S.JANARTHANA RAJA, J.) The petitioner is the wife of the detenu-Raja Mohammed @ Syed Mohammed. The petitioner has come forward with this Habeas Corpus Petition seeking for the relief of quashing the Detention Order No.C.P.O./TRC/B.M./D.O.No.05/2011 dated 05.07.2011 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), on the ground that the detenu-Raja Mohammed @ Syed Mohammed has been engaged in the smuggling and procuring Public Distribution System rice in a fraudulent manner for selling the same in the black market for pecuniary gain; that the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of distribution of essential commodities to the public. 2.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. He further submitted that the detenu has made representation to the respondents 1 to 3, but the same was not considered by https://hcservices.ecourts.gov.in/hcservices/ 2 the first respondent and therefore, there is violation of Articles 21 and 22 of the Constitution of India. Further he submitted that both the State and the Central Governments have got the power to revoke the order of detention, and that, when the State Government is empowered to consider the representation and could revoke the same, a similar power is also vested in the Central Government for exercising in appropriate cases and such power can be exercised on a representation made by the detenu. Therefore, he submitted that in view of the non-consideration of the representation of the detenu by the Central Government, it had resulted in violation of the Fundamental Right guaranteed under Article 22(5) of the Constitution of India. He relied on the judgment of this Court in the case of Sahul Hameed v. Additional Secretary to Government of India, reported in (2007) 1 MLJ (Crl) 1089, in support of his proposition. Therefore, according to the learned counsel for the petitioner, the order of detention passed by the third respondent has to be set aside. 3.Learned Additional Public Prosecutor appearing on behalf of the respondents 2 to 4 has 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. 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. 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. 4.Heard the counsel on either side and perused the materials available on record. Both the State and the Central Governments have got the power to revoke the order of detention. When the State Government is empowered to consider the representation and could revoke the same, a similar power is also vested in the Central Government for exercising in appropriate cases and such power can be exercised on a representation made by the detenu. In the present case, the detenu has made a representation dated 08.07.2011 to the respondents 1 to 3. Both the second and third respondents have considered the representation of the detenu and rejected the same. In respect of the representation made to the first respondent- Central Government, the same was not considered. Learned Central Government Standing Counsel appearing for the first respondent has fairly stated that the first respondent-Central Government has not considered the representation of the detenu. In view of the non-consideration of the representation of the detenu by the first respondent-Central Government, it had certainly resulted in violation of the Fundamental Right guaranteed under Article 22(5) of the Constitution of India. In the case of Sahul Hameed v. Additional Secretary to Government of India (cited supra), this Court has held in paragraph-10 of the judgment as under:- “10.Both the State and the Central Governments have got the power to revoke the order of detention. When the State Government is empowered to consider the representation and could revoke the same, a similar power is also vested in the Central Government for exercising in appropriate cases. https://hcservices.ecourts.gov.in/hcservices/ 3 Such power can be exercised not only on a representation made by the detenu, but also on a report received from the State Government. The only requirement for the Central Government to consider the necessity to pass the order of detention is the knowledge of detention either by a representation from the detenu or a report from the State Government. Though sub- section(4) of Section 3 does not indicate specifically as to the corresponding obligation for the Central Government, we are of the considered view that forwarding the report by the State Government to the Central Government as contemplated under sub-section(4) of Section 3 is not an empty formality and cannot be construed only to keep the record complete, as it has got a definite purpose in terms of the Fundamental Right of the detenu guaranteed under Articles 21 and 22(5) of the Constitution of India. In this context, the power conferred on the Central Government to consider and revoke the order of detention under Section 14 shall also be kept in mind. We therefore hold that the report of the State Government shall be considered and orders shall be passed by the Central Government and non-consideration of either the representation made by the detenu or the report received from the State Government would certainly result in violation of the Fundamental Right guaranteed under Article 22(5) of the Constitution of India and in such event, the order of detention is vitiated and is liable to be set aside.” 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.” https://hcservices.ecourts.gov.in/hcservices/ 4 The above judgments of this Court as well as the Supreme Court supports the case of the petitioner on the ground that the first 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. Failure on the part of the first respondent-Central Government in considering the representation of the detenu is against the above judgments. 5.After considering the overall view and the facts and circumstances of the case, we are of the considered view that in the present case, it is clear that the first respondent-Central Government has not considered the representation of the detenu, which had certainly resulted in violation of the Fundamental Right guaranteed under Article 22(5) of the Constitution of India. 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. 6.In the result, the Habeas Corpus Petition is allowed and the order of detention passed by the third respondent in his Proceedings C.P.O./TRC/B.M./D.O.No.05/2011 dated 05.07.2011 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 (AS) / TRUE COPY / Sub Assistant Registrar To: 1.The Additional Secretary, Government of India, Ministry of Consumer Affairs, Food and Public Distribution (Department of Consumer Affairs), Room No.270, Krishi Bavan, New Delhi-110 001. 2.The Secretary to the Government, Government of Tamil Nadu, Co-operation, Food and Consumer Protection Department, Secretariat, Chennai-9. 3.The Commissioner of Police, Trichy City, Trichy. 4.The Inspector of Police, CS.CID, Trichy. 5.The Superintendent of Central Prison, Trichy. 6.The Joint Secretary to Government, (Law and Order), Fort. St. George, Chennai-9. 7.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. KM HCP(MD)No.569 of 2011 RP/12.10.2011/4P/8C. 22.09.2011. https://hcservices.ecourts.gov.in/hcservices/