1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.09.2011 CORAM: THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA and THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Habeas Corpus Petition(MD)No.571 of 2011 Alima 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 District Collector and District Magistrate, Dindigul District, Dindigul. 4.The Inspector of Police, CS.CID, Dindigul. .. 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 Detention Order No.02/2011(CS) dated 06.07.2011 and quash the same as illegal and produce the detenu, namely Nazeer @ Prem Nazeer, S/o.Abubakkar, aged about 50 years, who is confined in Central Prison, Madurai before this Court and set him at liberty. For petitioner : Mr.T.Lenin Kumar For respondents : Mr.S.Sukumaran, Senior Panel Counsel, Government of India for R1 Mr.P.Jyothi, Additional Public Prosecutor for R2 to R4 https://hcservices.ecourts.gov.in/hcservices/ 2 ORDER (Order of the Court was made by P.P.S.JANARTHANA RAJA, J.) The petitioner is the wife of the detenu-Nazeer @ Prem Nazeer. The petitioner has come forward with this Habeas Corpus Petition seeking for the relief of quashing the Detention Order No.02/2010(CS) dated 06.07.2011 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-Nazeer @ Prem Nazeer has been engaged in the smuggling of Public Distribution System rice meant for public distribution system, which is an essential commodity as defined in Essential Commodities Act, 1955 and that it was being smuggled for sale at higher prices in Black Market with a view to make gain; that the activities of the detenu is prejudicial to the maintenance of supplies of commodities essential to the community; his activities might endanger social security and stability and also pose an imminent threat to social order; that the normal criminal law will not have the desired effect of effectively preventing him from indulging in such activities against Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, which are prejudicial to the maintenance of supplies of commodities essential to the community in future. 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 and it is also violative of Articles 19 and 21 of the Constitution of India. He further submitted that there is a clear violation of the provisions of Section 3(4) of the Act and as per the provision, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. He further submitted the detenu is unable to get the benefit of Section 14 of the Act which deals with revocation of detention order. He further submitted that the detenu has made representation to the respondents 1 to 3, but the same was not considered by the first respondent and therefore, there is violation of Articles 21 and 22 of the Constitution of India. Under the circumstances, the counsel for the petitioner submitted that the order of detention passed by the detaining authority is wrong, illegal and it is a violation of the constitutional right. 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. It is also stated that the activities of the detenu is prejudicial to the maintenance of supplies of commodities essential to the community and his activities might endanger social security and stability and also pose an imminent https://hcservices.ecourts.gov.in/hcservices/ 3 threat to social order. 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 Senior Panel 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. After passing the detention order, the State government ought to have sent the detention order along with the relevant papers to the Central Government. In the present case, there is no material available on record to show that the State Government has sent all the relevant records as contemplated under Section 3(4) of the Act. Section 3(4) of the Act reads as under:- “When any order is made or approved by the State Government under this section or when any order is made under this section by an officer of the State Government not below the rank of Secretary to that Government specially empowered under sub-section (1), the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.” If the State Government does not send the same to the Central Government under Section 3(4) of the Act, the Central Government cannot exercise its power for revocation of the order under Section 14 of the Act. Section 14 of the Act reads as under:- “14. Revocation of detention orders.- (1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified- (a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government; (b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government. (2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order under section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be, is satisfied that such an order should be made.” From a reading of the above provision, it is clear that when an order is approved by the State Government under this Section, the State Government shall, within seven days, report the fact to the Central Government https://hcservices.ecourts.gov.in/hcservices/ 4 together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. There is no dispute that in the present case, the State Government has not sent all the relevant records as contemplated under Section 3(4) of the Act. Further, Section 14 of the Act also empowers the Central Government to revoke the detention order. If the State Government does not send the same to the Central Government under Section 3(4) of the Act, the Central Government cannot exercise its power for revocation of the order under Section 14 of the Act. Therefore, it is a clear violation of Section 3(4) of the Act. The said provisions are the subject matter of interpretation in H.C.P.(MD)No.513 of 2011 dated 03.08.2011 wherein we have considered the earlier judgment of this Court made in H.C.P.(MD)No.4 of 2011 dated 23.03.2011 in the case of J.Susila v. The Additional Secretary, Government of India, Ministry of Consumer Affairs, Food and Public Distribution (Department of Consumer Affairs), New Delhi and others, in which it is stated in paragraph-8 as under:- “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 https://hcservices.ecourts.gov.in/hcservices/ 5 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.” From a reading of the above, it is clear that this Court has categorically stated that it is mandatory on the part of the State Government to send the report within a period of seven days. We also agree with the above view of the Division Bench of this Court. Therefore, in view of the violation of Section 3(4) of the Act, the order of detention is liable to be set aside. 5.In the present case, it is also seen that the detenu had sent a representation dated 08.07.2011 to the respondents 1 to 3. The third respondent has considered the representation and rejected it, and there is no dispute regarding the same. The second respondent has also considered the representation and rejected it. In respect of the representation made to the first respondent, the same was not considered by the first respondent. Learned Senior Panel Counsel appearing for the first respondent has fairly stated that the first respondent-Central Government has not considered the representation of the detenu. 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.” The above judgment of 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 judgment of the Supreme Court. https://hcservices.ecourts.gov.in/hcservices/ 6 6.In the case of Rekha v. State of Tamil Nadu reported in (2011) 5 SCC 244, the Supreme Court has held in paragraph-39 as under:- “39. Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. The stringency and concern of judicial vigilance that is needed was aptly described in the following words in Thomas Pelham Dale case: (QBD p.461) “Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue.”” After considering the overall view and the facts and circumstances of the case, we are of the considered view that in the present case, there is violation of the provisions of Section 3(4) of the Act and also non- consideration of the representation of the detenu by the first respondent. 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. 7.In the result, the Habeas Corpus Petition is allowed and the order of detention passed by the third respondent in his Proceedings 02/2011(CS) dated 06.07.2011 is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. KM 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. https://hcservices.ecourts.gov.in/hcservices/ 7 3.The District Collector and District Magistrate, Dindigul District, Dindigul. 4.The Inspector of Police, CS.CID, Dindigul. 5.The Superintendent, Central Prison, Madurai. 6.The Joint Secretary to Government, Public [Law & order] Fort Saint George, Chennai-9. 7.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. HCP(MD)No.571 of 2011 Dated:14.09.2011 7P/8C RPB 28.09.2011 https://hcservices.ecourts.gov.in/hcservices/