In the High Court of Judicature at Madras Dated: 23.09.2008 Coram: The Honourable Mrs.Justice Prabha Sridevan and The Honourable Mr.Justice V.Periya Karuppiah H.C.P.No.1065 of 2008 V. Krishnamoorthy .. Petitioner vs. 1. The Secretary to Government Food, Cooperation and Consumer Protection Department Secretariat Chennai – 600 009 2. The District Magistrate and District Collector Ariyalur District Ariyalur 3. Additional Secretary to the Government of India Department of Consumer affairs Room No.270, Krish Bhavan New Delhi – 110 001 .. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India, for a writ of habeas corpus calling for the records in connection with the order of detention passed by the second respondent dated 25-06-2008 in P.B.M.M.S.E.C./ACT/C.M.P.No.20/2008 against the petitioner's son K. Mathiyalagan, son of Krishnamoorthy aged about 38 years who is confined at Central Prison, Trichy and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty. For petitioner : Mr. V. Parthiban For respondents : Mr.P.Kumaresan, Addl.P.P. https://hcservices.ecourts.gov.in/hcservices/ Order (The Order of the Court was made by Prabha Sridevan,J) The father of the detenu has filed this habeas corpus petition challenging the order. The detenu has been detained as a black- marketer under Prevention of Black Marketing and Maintenance of supplies of Essential Commodities Act by the second respondent dated 25-06-2008. . 2. The counsel for the petitioner submitted that the English version of the detention order differs from the translated tamil version and pointed out to the following differences: (i) In the English version, Paragraph No.4 uses the words "voluntarily indulging", the Tamil translation uses the words @tHf;fkhf bfhz;l@/ The learned counsel submitted that the two phrases have different connotations and implications. (ii) In the English version Paragraph No.6 indicates that the detenu's representation will be considered by the Advisory Board along with 'case details'. While in the Tamil Version the words "case details" are not translated. This has caused prejudice. 3. The learned Additional Public Prosecutor submitted that the petitioner has a right to know that he can give a representation and that the representation will be placed before the Advisory Board. The omission to translate the word 'case details' will not really vitiate the order since the detenu knows that the matter will be placed before the Advisory Board. As regards the second error pointed out by the learned counsel for the petitioner, the learned Additional Public Prosecutor referred to page No.6 of the typed set of papers where in the voluntary confession said to have been made by the detenu, the detenu had referred to the fact that he had little by little accumulated 397 bags of rice and therefore, this was material enough to justify the conclusion that he was an habitual offender and in any even the learned Additional Public Prosecutor submitted that even the single act may indicate that the offender is likely to indulge in such prejudicial activities and therefore, this also will not vitiate the error in transmission. 4. Let us look at the two paragraphs: "4. This reveals that Thiru. K. Mathiyalagan is voluntarily indulging in the offence of purchasing the PDS rice issued to the Public illegally and selling it in black market in order to get more pecuniary gains and thereby acted against the provisions of the prevention of Black Marketing and maintenance of supplies of essential commodities Act 1980." https://hcservices.ecourts.gov.in/hcservices/ @4/ mjpfg; bghUs; <l;Lk; nehf;Fld;. fs;sj;jdkhf tpw;gij tHf;fkhff; bfhz;l jpU/ fp/ kjpaHfd; vd;gth; bghJ kf;fSf;fhf nurd; filfspy; tpepnahfk; bra;ag;gLk; mj;jpahtrpag; bghUshd bghJ tpepnahfj;jpw;fhd mhprpia rl;l tpnuhjkhf Kiwnflhf th';fp mjid fs;sr; re;ijapy; tpw;W mjpfk; yhgk; rk;ghjpf;f flj;jpa[s;sjhy; ,th; xU @fs;sr;re;ijf;fhuh;@ vd;gJk;. 1980k; tUlj;jpa fs;sr;re;ij jLf;Fk; mj;jpahtrpag; gz;l';fs; tH';Fjy; guhkhpg;g[r; rl;lk; 3(1) (m)?f;F vjpuhf bray;gl;Ls;shh; vd;gJk; bjhpa te;Js;sJ/@ " 6... Any representation that is made by him to the Government will duly considered by the Government and will be placed before the Advisory Board along with his case details, for consideration under section of 10 of the Prevention of Black Marketing and Maintenance of supplies of Essential Commodities Act, 1980." @mth; mDg;g[k; KiwaPL vjida[k; muR chpathW ghprPypg;gJld;. 1980k; tUlj;jpa fs;sr; re;ij jLg;g[ kw;Wk; mj;jpahtrpag; gz;l';fs; tH';fy; guhkhpg;g[r; rl;lk; (rl;lk; 7-1980) 10 tJ gphptpd; fPH; mtuJ KiwaPL mwpt [iuf; FGkj;jpd; Kd;ghf ghprPyidf;F itf;fg;gLk;/@ Objection No.1: Paragraph No.4 of the detention order which is extracted above would show that the detenu on his own volition had illegally purchased PDS rice and had sold it in black market. The detention order in English does not indicate that the detaining authority was satisfied that the detenu was a habitual offender. His conclusion was that the detenu was wilfully indulging in this prejudicial activity which is the offence under Section 3(1)(a) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980( Act 7 of 1980). On the contrary, the Tamil version which alone was understood by the detenu would indicate that the detaining authority was satisfied that the detenu was habitually indulging in this offence. Because the words, @tHf;fkhf bfhz;l@ would indicate such a conduct. The detenu is entitled to know exactly what the detaining authority had in his mind while passing the detention order. That is why the Supreme Court and this Court has insisted upon the correct translation when a version in vernacular or the language known to the detenu is given, so that the detenu is not in any misapprehension regarding what passed in the minds of the detaining authority while arriving at the subjective satisfaction that the detenu should be detained in order to prevent him from indulging in any similar activities in future. 5. Let us refer to the judgment of the Supreme Court in Vijay narain Singh V. State of Bihar (AIR 1984 SC 1334) wherein it is held as follows: "Because the idea of “habit” involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if the acts or omissions in question are not of the same kind or even if they are of https://hcservices.ecourts.gov.in/hcservices/ the same kind when they are committed with a long interval of time between them they cannot be treated as habitual ones." By no stretch of imagination, 'voluntarily indulging' can be @tHf;fkhf bfhz;l@ or habitual. If on the basis of the Tamil version, the detenu was given to understand that the detaining authority had concluded that there was an element of persistence or a tendency to repeat the acts then the detenu was entitled to know on what basis the detaining authority arrived at such conclusion. Therefore, it is not a case of mere error in translation. If the detaining authority mean to say that the detenu was a habitual offender there should be materials for the same. If the detaining authority did not intend to refer to the detenu as a habitual offender, the use of the words @tHf;fkhf bfhz;l@ is the result of non-application of mind. We are resting our conclusion on this ground alone viz., ObjectionNo.1. 6. Viewed from either angle, the detention order suffers and the same stands vitiated. Therefore, the impugned order is quashed and the habeas corpus petition is allowed. The detenu K. Mathiyalagan, son of Krishnamoorthy aged about 38 years is directed to be set at liberty forthwith unless his presence is required in connection with any other case. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar glp To 1. The Secretary to Government Food, Cooperation and Consumer Protection Department Secretariat Chennai – 600 009 2. The District Magistrate and District Collector Ariyalur District Ariyalur https://hcservices.ecourts.gov.in/hcservices/ 3. The Additional Secretary to the Government of India Department of Consumer affairs Room No.270, Krish Bhavan New Delhi – 110 001 4. The Superintendent, Central Prison, Tiruchirapalli. 5. The Joint Secretary to Government Public (Law and order) Department, Fort.St.George,Chennai-9. 6. The Public Prosecutor, High Court, Madras. +1 cc To Mr.C. Prakasam, Advocate, SR.54408 H.C.P.No.1065 of 2008 gr [co] gkg/17.10 https://hcservices.ecourts.gov.in/hcservices/