1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:09.12.2011 CORAM: THE HONOURABLE MR.JUSTICE.M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE.S.NAGAMUTHU H.C.P.(MD)No.949 of 2011 Hameetha Banu : Petitioner Vs. 1.The Secretary, Government of Tamil Nadu, Co-operation, Food and Consumer Protection Department, Secretariat, Chennai-600 009. 2.The District Collector . and District Magistrate, Theni District, Theni. 3.The Inspector of Police, CS.CID, Uthamapalayam, Theni District. : Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus Petition filed seeking to call for the records pertaining to the order of detention passed by the second respondent in his proceedings Detention order. No.02/2011 (CS), dated 07.10.2011 and quash the same as illegal and produce the detenu, namely, Ansari @ Tamimul Ansari, son of Shiek Masthan, aged about 27 years, who is confined in the Central Prison, Madurai, before this Honourable Court and set him at liberty forthwith. For Petitioner : Mr.T.Lenin Kumar For Respondents : Mr.T.Moha Additional Public Prosecutor ORDER [Order of the Court was made by M.JAICHANDREN.J] This Habeas Corpus petition has been filed to call for the records relating to the order of the second respondent, dated 07.10.2011, made in Detention Order No:02/2011, (CS) and quash the same, and to produce the detenu, namely, Ansari @ Thamimul Ansari, son of Sheik Masthan, aged about 27 years, confined in the Central Prison, Madurai, before this Court and to set him at liberty. https://hcservices.ecourts.gov.in/hcservices/ 2 2. It has been stated that the petitioner is the wife of the detenu, Ansari @ Thamimul Ansari. She had stated that the second respondent had passed the impugned order, dated 07.10.2011, under Section 3(2)(a), read with 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act,1980, (Act 7 of 1980), directing the detention of Ansari @ Thamimul Ansari, the husband of the petitioner, in the Central Prison, Madurai, terming him as a 'Black Marketeer'. 3. The petitioner has stated that a false case had been foisted against her husband, namely, Ansari @ Thamimul Ansari. Therefore, the petitioner had made a pre-detention order representation, on 04.10.2011, addressed to the second respondent. 4. In the said detention order, two cases have been referred as adverse cases and a case in Crime No.367/2011, on the file of the third respondent, has been referred to as the ground case. Since, the ground case and the detention order have been foisted against the detenu, the petitioner had submitted two representations, dated 12.10.2011 and 11.10.2011 before the first and second respondents respectively. However, both the representations had not been disposed of, till date. 5. The petitioner has stated, inter alia, that the Detaining Authority had passed the impugned detention order without proper application of mind. The petitioner has further submitted that the detenu had been remanded in judicial custody, in Crime No.367/2011, on the file of the third respondent. The bail application filed on behalf of the detenu, before the Judicial Magistrate Court, Uthamapalayam, in Crime No.367/2011, in Cr.M.P.No.14931/2011, had been dismissed, on 03.10.2011. Thereafter, no bail application had been filed in the said ground case, on behalf of the detenu. However, the Detaining Authority had stated, in paragraph 5 of the grounds of detention, that there is a real possibility of the detenu coming out on bail, by filing a bail application, in Crime No.367/2011, either before the Court concerned or before the higher Court. 6. The detaining authority has also stated that, if the detenu comes out on bail, he would indulge in activities, which would be prejudicial to the maintenance of supplies of commodities essential to the community. It has also been stated that the recourse to normal criminal law will not have the desired effect of effectively preventing the detenu from indulging in such activities. The petitioner has also stated that the detaining authority has also observed that there was a compelling necessity, to detain the detenu, in order to prevent him from acting in a manner prejudicial to the maintenance of supplies of commodities essential to the community. 7. In view of paragraph 5 of the grounds of detention, it is made clear that there is no proper application of mind by the Detaining Authority, in passing the detention order, dated 07.10.2011. The petitioner has also stated that there are certain https://hcservices.ecourts.gov.in/hcservices/ 3 discrepancies between the English version and the Tamil version in the grounds of detention furnished to the detenu. 8. The petitioner has also stated that the second respondent, after having passed the impugned detention order, dated 07.10.2011, had also passed an amending order, on 10.10.2011. However, the amended order had not been furnished to the detenu, in order to enable him to make an effective representation against the said order. The petitioner has also stated that the detenu had been arrested, even prior to the registration of the First Information Report. 9. It had also been stated that the detenu had been remanded in judicial custody, initially, only upto 04.10.2011, in Crime No.367/2011. Later, the detention of the detenu had been extended upto 18.10.2011. However, the remand order extending the detention of the detenu had not been furnished to the detenu, in spite of his request. 10. Even though various grounds had been raised by the petitioner, in the present Habeas Corpus petition, while challenging the order of detention, passed by the second respondent, the learned counsel appearing on behalf of the petitioner had submitted that the order of detention passed by the second respondent, on 07.10.2011, is liable to be set aside, merely on the ground of delay in the disposal of the pre-detention order representation, dated 04.10.2011 and the second representation, dated 11.10.2011, made on behalf of the detenu. 11. The learned counsel for the petitioner had further submitted that the pre-detention order representation, dated 04.10.2011, made on behalf of the detenu, had been received by the Office of the Detaining Authority, on 07.10.2011. Thereafter, a further representation sent by the detenu, on 11.10.2011, had been received in the Office of the Detaining Authority, on 18.10.2011. Both the representations had been duly considered by the Detaining Authority and they had been rejected on valid grounds and it had been intimated to the petitioner vide Roc.No.C3/34915/2011, dated 25.10.2011. The State Government had granted the approval for the detention order passed by the Detaining Authority, on 18.10.2011. After the approval of the detention order by the State Government, on 18.10.2011, the Detaining Authority becomes 'functus officio'. However, the Detaining Authority had rejected the representation made on behalf of the detenu, on 25.10.2011. The Detaining Authority had already become 'functus officio' on and from 18.10.2011, after the State Government had granted the approval for the detention order. As such, on 25.10.2011, the Detaining Authority did not possess the power or the authority to reject the representation, dated 11.10.2011, sent on behalf of the detenu. 12. The learned counsel appearing on behalf of the petitioner had relied on the decision of the Supreme Court, in the State of Maharashtra Vs. Santosh Shankar Acharya, (2000) 7 SCC 463, https://hcservices.ecourts.gov.in/hcservices/ 4 wherein, it had been held as follows:- “The District Magistrate or Commissioner of Police on being authorised by the State Government could issue an order of detention under sub-section (2) of Section 3. When an officer exercises power and issues orders of detention under sub-section (2) then he is duty-bound to report forthwith the facts of detention and the grounds on which the order of detention is made and/or other particulars to the State Government. On receipt of the report, the grounds and the particulars from the officer concerned the State Government is required to approve the order of detention within 12 days, and if it is not approved within 12 days then it automatically lapses. Section 8(1) casts mandatory obligation both on the authority which passes an order of detention either under sub-section (1) or under sub-section (2) i.e. if the State Government issues an order of detention under sub-section (1), or if the officer empowered issues an order of detention under sub-section (2) that the same must be communicated to the detenu not later than 5 days from the date of detention. Although in the latter part of sub-section (1) of Section 8 it has been categorically mentioned that an earliest opportunity of making a representation against the order to the State Government should be afforded, but that does not make the State Government the detaining authority as soon as the factum of detention is communicated by the person concerned exercising power under sub-section (2) as provided under sub-section (3) thereof nor does it take away the power of entertaining a representation from a detenu so long as the order of detention has not been approved by the State Government. In a case where an officer other than the State Government issues an order of detention under sub-section (2) of Section 3 his powers as the detaining authority to deal with the representation under the provisions of Section 21 of the Bombay General Clauses Act, 1904, cannot be said to be taken away merely because Section 8(1) specifically provides for making a representation to the State Government. Such failure would make the order of detention invalid. As such the ratio of the Constitution Bench decision of this Court in Kamleshkumar case would apply notwithstanding the fact that in Kamleshkumar case the Court was dealing with an order of detention issued under the provisions of the COFEPOSA Act.” 12.1. The learned counsel had also relied on a Division Bench of this Court, dated 15.11.2011, made in HCP(MD).No.610 of 2011, wherein, it had been held, relying on, the decisions made in Ravinthiran @ John Ravinthiran, (2009 (1) MLJ (Crl.) 721), Puranlal Lathanlal Vs. Union of India (1958 Crl.L.J.283) and Rajeswari Vs. Secretary to Government, Prohibition and Excise Department (2006 (1) MLJ (Crl.) 628 Mad.), that, when the Detaining Authority passes an order on the representation submitted on behalf of the detenu https://hcservices.ecourts.gov.in/hcservices/ 5 exceeding his powers, the impugned order of detention would stand vitiated. This Court had also held that an order passed by the Detaining Authority, after he becomes 'functus officio' is liable to be set aside. 13. A detailed counter affidavit had been filed on behalf of the second respondent. The learned counsel appearing on behalf of the respondents had submitted that the impugned detention order passed by the Detaining Authority cannot be said to be in valid in the eye of law. Since, the detenu was indulging in activities prejudicial to the Maintenance of Supplies of Essential Commodities, the second respondent had passed the detention order, dated 07.10.2011, under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act,1980, in order to prevent him from indulging in such activities. 14. He had further submitted that the ground case, as well as the adverse cases were genuine in nature and they were not foisted, as alleged by the petitioner. Further, there are no procedural irregularities in the passing of the detention order. The learned counsel had further submitted that there was a real possibility of the detenu coming out on bail by filing a bail application, in Crime.No.367/2011. He had also submitted that the tamil version of the documents relied on by the Detaining Authority had been furnished to the detenu. Thereafter, the Detaining Authority had arrived at his subjective satisfaction to detain the detenu, based on the materials available on record, placed before him by the sponsoring authority. 14.1. The learned counsel appearing on behalf of the respondents had referred to paragraph 8 of the counter affidavit filed on behalf of the second respondent, which reads as follows:- “8. I submit that, the averments raised in Ground (I) of the affidavit is false. The petitioner representation dated 04.10.2011 addressed to the Collector was actually received this office after the Detention order was passed (ie.07.10.2011). Hence the Detention authority could not able to consider her representation dated 04.10.2011 and further representation dated 11.10.2011 was received in this office on 18.10.2011 was duly considered the representation and rightly rejected on valid grounds and intimated the same to the petitioner vide Roc.No.C3/34915/2011, dated 25.10.2011. Since the District Administration has engaged in the arrangements made for the conduct of Local Body Election on 17.10.2011 as Pre Poll day on 18.10.2011, Polling day 19.10.2011, Pre Counting day 20.10.2011 and Counting day 21.10.2011, 22.10.2011 and 23.10.2011 (Saturday & Sunday) and I have attended the review meeting conducted by the Home Secretary, to Government and Director General of Police on 23.10.2011 at Collectorate Madurai in connection with Thevar Jeyanthi and Guru Pooja festival. In turn, I have https://hcservices.ecourts.gov.in/hcservices/ 6 conducted a meeting with Police and Revenue and other allied departments at Collectorate Theni on 24.10.2011 to avoid Law & Order Problem in this District. In the circumstances stated above the contention raised by the petitioner may be rejected.” 14.2. The learned counsel had also submitted that there is no undue and unexplained delay in the disposal of the representations made on behalf of the detenu. As such, the detention order passed by the Detaining Authority is valid and therefore, the Habeas Corpus petition filed by the petitioner is liable to be dismissed. 15. From the records available, it is seen that the Detaining Authority, the second respondent herein, had considered the pre-detention order representation, dated 04.10.2011, and a further representation, dated 11.10.2011, made on behalf of the detenu, only after the State Government had granted the approval for the detention order. The rejection of the representations made on behalf of the detenu, by the Detaining Authority, had been intimated to the petitioner, vide Roc.No.34915/2011, dated 25.10.2011. Infact, the Detaining Authority, the second respondent herein, had become 'functus officio' after the State Government had granted the approval for the detention order, on 18.10.2011. It is not in dispute that the Detaining Authority had rejected the representations made on behalf of the detenu, only after 18.10.2011. Further, there is no proper explanation for the delay in the disposal of the representations made on behalf of the detenu, on 04.10.2011 and 11.10.2011. 16. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents, and on a perusal of the records available before this Court and in view of the decisions cited supra, the detention order, dated 07.10.2011, passed by the second respondent, is set aside. The detenu is directed to be set at liberty, forthwith, unless his detention is required in connection with any other case or cause. Sd/- Assistant Registrar (RTI) /True Copy/ Sub Assistant Registrar To 1.The Secretary, Government of Tamil Nadu, Co-operation, Food and Consumer Protection Department, Secretariat, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/ 7 2.The District Collector . and District Magistrate, Theni District, Theni. 3.The Inspector of Police, CS.CID, Uthamapalayam, Theni District. 4.The Secretary to Government, Home, Prohibition & Excise Department, Fort.St.George, Chennai-600 009. 5.The Joint Secretary to Government, Public (Law & Order), Fort St.Geore, Chennai – 9. 6.The Superintendent, Central Prison, Madurai. 7.The Additional Public Prosecutor Madurai Bench of Madras High Court, Madurai. Order made in H.C.P.(MD)No.949 of 2011 Dated:- 09.12.2011 ssm NSV/9.1.12/7P/8C https://hcservices.ecourts.gov.in/hcservices/