IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.05.2007 CORAM THE HONOURABLE MR.JUSTICE K.MOHAN RAM Writ Petition Nos.12292, 11308, 11309, 11027, 12091, 14838 12092, 4693, 4962, 5561, 6452 of 2007 and 3406, 24689, 38890, 36946, 36947, 29859, 29860, 22243, 39540, 49008, 38308, 39331, 17255, 22968 to 22970, 12425, 50010, 31780, 47920, 5331 of 2006 and 12708 of 2005 and 35077 of 2004 and M.P.Nos.1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1 of 2007 and M.P.Nos.1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1 of 2006 and W.P.M.P.Nos.3623, 14019, 5722 of 2006 and W.V.M.P.No.2137 of 2006 and W.P.M.P.No.13893 of 2005 and W.P.M.P.No.42314 of 2004 S.Poonkol ..Petitioner in WP 12292/07 S.R.Ganesan ..Petitioner in WP 11308/07,38890/06 M.Tirunavukarasu ..Petitioner in WP 11309/07,24689/07 G.Rajesh ..Petitioner in WP 11027/07 P.Ramachandran ..Petitioner in WP 12091/07 https://hcservices.ecourts.gov.in/hcservices/ R.Muneeswaran ..Petitioner in WP 12092/07 M.M.Ramapandi ..Petitioner in WP 14838/07 V.Ravi ..Petitioner in WP 4693/07 L.R.Vishveshwara Rao ..Petitioner in WP 4962/07 M.Sivasankar ..Petitioner in WP 5561/07 P.Annadurai ..Petitioner in WP 6452/07 A.Abthahir ..Petitioner in WP 3406/06 S.Ramachandran ..Petitioner in WP 36946/06 S.Suresh ..Petitioner in WP 36947/06 R.Srinivasan ..Petitioner in WP 29859/06 M.Manickam ..Petitioner in WP 29860/06 A.Sivanesan ..Petitioner in WP 22243/06 N.Hari Ramachandran ..Petitioner in WP 39540/06 K.Karthikeyan ..Petitioner in WP 49008/06 A.Farook ..Petitioner in WP 38308/06 M.Mehaboob Basha ..Petitioner in WP 39331/06 K.Nagarajan ..Petitioner in WP 17255/06 S.K.Murugesan ..Petitioner in WP 22968/06 G.Selvaraj .. Petitioner in WP.22969/06 M.Anandha Krishnan @ Anandhan ..Petitioner in WP 22970/06 N.Ahamed Ali ..Petitioner in WP 12425/06 N.Kumar @ Nainar Kumar ..Petitioner in WP 50010/06 M.Thanasekar ..Petitioner in WP 31780/06 H.Peer Mohammed ..Petitioner in WP 47920/06 K.Palani Selvam ..Petitioner in WP 5331/06 K.Rajasekar ..Petitioner in WP 12708/05 https://hcservices.ecourts.gov.in/hcservices/ K.Palani Selvam ..Petitioner in WP 35077/04 -Vs.- The State of Tamil Nadu, rep. by its Secretary to Government, Co-operation Food and Consumer Protection Department, Fort St.George, Chennai - 9. 1st respondent in WP.12292/07, 11308/07, 11309/07, 11027/07, 12091/07, 12092/07, 14838/07, 4693/07, 4962/07, 5561/07, 6452/07, 3406/06, 24689/06, 38890/06, 36946/06, 36947/06, 29859/06, 29860/06,22243/06, 39540/06, 49008/06, 38308/06, 39331/06, 17255/06, 22968/06, 22969/06, 22970/06, 12425/06, 50010/06, 31780/06, 47920/06, 5331/06, 12708/05, 35077/04. The District Collector, Tiruvannamalai District, Tiruvannamalai. 2nd respondent in WP.12292/07, 11308/07, 11309/07. The Inspector of Police, CSCID, Vellore, Vellore District. 3rd respondent in WP.12292/07, 11308/07, 11309/07, 38890/06, 36946/06, 29859/06. The District Collector, Villupuram District, Villupuram. 2nd respondent in WP.11027/07, 6452/07, 22243/06. The Inspector of Police, CSCID, Cuddalore, Cuddalore District. 3rd Respondent in WP.11027/07, 4693/07, 6452/07, 22243/06, 39540/06, 49008/06. The District Collector, Coimbatore District, Coimbatore. 2nd respondent in WP.12091/07, 14838/07, 4962/07, 38308/06, 39331/06, 22970/06, 31780/06. https://hcservices.ecourts.gov.in/hcservices/ The Inspector of Police, CSCID, Pollachi, Coimbatore District. 3rd Respondent in WP.No.12091/07, 14838/07, 22970/06, 31780/06. The District Collector, Theni District, Theni. 2nd Respondent in WP.No.12092/07. The Inspector of Police, CSCID, Uthamapalayam. 3rd Respondent in WP.No.12092/07. The District Collector, Cuddalore District, Cuddalore. 2nd respondent in WP.No.4693/07, 39540/06, 49008/07. The Inspector of Police, CSCID, Coimbatore, Coimbatore District. 3rd Respondent in WP.No.4962/07, 38308/06. The Inspector of Police, CSCID, Cuddalore, Cuddalore District. 3rd Respondent in WP.4693/07, 39540/06, 49008/06. The District Collector, Krishnagiri District, Krishnagiri. 2nd Respondent in WP.No.5561/07, 24689/06, 36947/06, 29860/06, 17255/06, 22968/06, 22969/06 The Inspector of Police, CSCID, Krishnagiri, Krishnagiri District, 3rd Respondent in WP.Nos.5561/07, 36947/06, 29860/06, 17255/06, 22969/06. 4th Respondent in WP.No.24689/06 22968/06 The Inspector General of Police, Civil Supplies CID, Periyar Building, Nandanam, Chennai. 2nd Respondent in WP.No.3406/06, 50010/06 3rd Respondent in WP.5331/06 The District Collector, Vellore District, Vellore. 3rd Respondent in WP.24689/06 2nd Respondent in WP.38890/06 36946/06, 29859/06 https://hcservices.ecourts.gov.in/hcservices/ The Inspector of Police, Ponnai Police Station, Ponnai, Vellore District 4th Respondent in WP.No.29859/06 The Inspector of Police, Kottur Police Station, Kottur, Pollachi Taluk, Coimbatore District. 3rd Respondent in WP.no.39331/06 The District Collector, Dharmapuri District, Dharmapuri 3rd Respondent in WP.No.22968/06 The District Collector, Erode District, Erode, 2nd Respondent in WP.no.12425/06 The Inspector of Police CSCID, Erode. 3rd Respondent n W.P.12425/06 The District Collector, O/o The Collectorate, Tirunelveli District, Tirunelveli 3rd Respondent in WP.No.50010/06 The Inspector of Police, CSCID, Tirunelveli district, Tirunelveli 4th Respondent in WP.No.50010/06 The District Collector, Virudhunagar District, Virudhunagar. 4th Respondent in WP.31780/06 2nd Respondent in WP.47920/06 12708/05 The Inspector of Police, CSCID, Virudhunagar, 5th Respondent in WP.31780/06 3rd Respondent in WP.47920/06 The Addl Director General of Police, Civil Supplies CID, E.V.R. Periyar Buildings, Nandanam, Chennai 600 035. 2nd Respondent in WP.5331/06 The Addl Deputy Superintendent of Police, Civil Supplies, CID, Madurai, 4th Respondent in WP.5331/06 The District Collector, Tiruvallur District, Tiruvallur. 5th Respondent in WP.5331/06 https://hcservices.ecourts.gov.in/hcservices/ The Collector, Thuthukudi District, Thuthukudi. 2nd Respondent in WP.35077/04 For the petitioner in WP.Nos. 12292/07, 11308/07, 11309/07, 11027/07,12091, 12092,4693, 14838, 4962, 5561, 6452/2007, 3406, 24689, 38890, 36946, 36947, 29859, 29860, 22243, 39540, 49008, 38308, 39331, 17255, 22968, 22969, 22970, 12425, 31780, 47920, of 2006 and 12708 of 2005. Mr. B. Kumar, Senior Counsel for Mr. C. Prakasam. For the Petitioner's WP.No. 50010/2006 Mr. D. Veerasekaran For the Petitioner in WP.No. 5331/2006 & WP.No. 35077/2004 Mr. R. Rajarathinam For Respondents in all the Petitions:Mr. P.S. Raman Additional Advocate General assisted by Mr. M. Dhandapani AGP. Petitions under Article 226 of the Constitution of India to issue Writs of Mandamus forbearing the respondents in each of the petitions from detaining the Petitioner's husband by name N. Srinivasan 2. The Petitioner 3. The Petitioner 4. The petitioner's friend by name Ravi @ Ravichandran 5. The Petitioner's father by name Athipandian @ Pandian 6. The Petitioner 7. Petitioner's husband by name Muthian @ Muthiah 8. the Petitioner 9. the Petitioner 10. the petitioners brother by name M. Amaresh 11. The Petitioner 12. the Petitioner 13. The Petitioner 24689 https://hcservices.ecourts.gov.in/hcservices/ 14. the petitioner 15. the petitioner 16. the petitioner 17. the petitioner 18. the petitioner's brother-n-law by name R. Meganathan 19. the petitioner brother by name A.Amarasan 20. the petitioner 21. the petitioner 's brother-in-law by name K. Muralidharan 22. the petitioner 23. the petitioner 's brother by name Rahim @ Adul Rehman 24. the petitioner 25. the petitioner 26. the petitioner 27. the petitioner 28. the petitioner 29. the petitioner 30. the petitioner 31. the petitioner 's brother by name Ismail 32. the petitioner 33. the petitioner 34. the petitioner respectively under the provisions of the 3(1) of the Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act 1980 (Act 7/80). C O M M O N O R D E R The above writ petitions fall under two categories. (i)In W.P.Nos.12292 of 2007 etc., batch, the petitioners are seeking issuance of Writ of Mandamus forbearing the Government of Tamilnadu from exercising its power under https://hcservices.ecourts.gov.in/hcservices/ Section 3(1) of the Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act, 1980 to detain the petitioners / their husbands / their close relatives / their friends, etc., (ii)In W.P.No.35077 of 2004 the petitioner is seeking for the issuance of a Writ of Mandamus forbearing the respondents from in any manner implementing the detention order by way of arresting or detaining the petitioner in pursuant to the issuance of an order of detention passed by the second respondent under Section 3(1) of the Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act 1980 (Act 7 / 1980). 2. The petitioners in the batch of writ petitions are apprehending that order of detention may be passed by the competent authority under the Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act, 1980 (hereinafter called as the 'Act'). According to the petitioners they have been proceeded against for dealing with paddy/rice issued under Public Distribution System in violation of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order 1982 (hereinafter called as '1982 Order') which violations are punishable under the Essential Commodities Act, 1955 (hereinafter called as 'EC Act'). 3. The contention of the petitioners is that in the Government of India (Ministry of Agriculture and Irrigations, Department of Food) No.GSR 800 dated 09.06.1978, the Central Government has delegated the powers to the State Governments to make orders. In exercise of the said power, the Government of Tamil Nadu has made the 1982 Order. While so, the Government of India has passed an order viz., Removal of Licensing Requirements on Specified Food Stuff Order 2002 (hereinafter called as '2002 Order') which totally frees various foods stuff, including paddy and rice from all controls and restrictions etc. Rule 4 of the 2002 Order contains a non-abstante clause stating that this order will have effect notwithstanding anything contrary contained in any other law for the time being in force. Rule 5 of the 2002 Order states that issue of any order by the State Government under powers delegated in GSR 452(E) dated 25.10.1972 and GSR 800 dated 09.06.1978 for regulating by licenses, permit or otherwise, the storage, transport etc., of any of the commodities specified in Clause 3 shall require the prior concurrence of the Central Government. According to the petitioners the State Government has not obtained the prior concurrence of the Central Government and therefore the persons who have been arrested and dealt with on the assumption that they have contravened the 1982 Order cannot be detained under the Act. Further it is the case of the petitioners that none of the persons have been dealt with under the 2002 Order, but have been dealt with only under 1982 order and hence they cannot be detained under the Act. 4. In W.P.No.35077 of 2004 the detention order has already been passed against the petitioner. According to the petitioner, https://hcservices.ecourts.gov.in/hcservices/ as the 1982 order is no longer valid in view of the coming into force of the 2002 Order, the petitioner cannot be said to have contravened any Order and consequently, he could not also be said to have violated the EC Act and therefore the detention order made on the basis that the petitioner has violated the 1982 Order and committed an offence under the EC Act cannot be executed against the petitioner. According to the petitioner, all through the petitioner has alleged to have contravened only the 1982 Order and that was the only material available in October 2004, when the order of detention was made and therefore the detention order passed relying upon the invalid 1982 Order cannot be executed against the petitioner. 5. Whereas, the respondents have taken a preliminary objection on the maintainability of the very writ petitions itself. According to the respondents, the prayers in the writ petitions are in substance for the issue of a writ of Prohibition and such writ petition cannot be issued unless the apprehended action of the respondents totally lacks jurisdiction. In the instance case the Tamil Nadu Black Marketing Act, 1980 is a preventive detention legislation on which the authorities may act is not in dispute and consequently such a writ of mandamus as prayed for cannot be issued. According to the respondents, the question as to whether in the individual facts and circumstances of each case the reasons that may prompt the authorities concerned to entertain any apprehension about the conduct of the writ petitioners and whether such actions are within the purview of the Act can only be adjudicated upon if and when any order of preventive detention is issued and not at this premature stage. According to the respondents, the 2002 Order relates only to free market rice and not to rice meant for Public Distribution System (PDS Rice). Clause 6 of the 2002 order saves the operation of the 2001 Order and 2001 Order provides for certain offence relating to PDS rice and therefore if any individual is found in possession of what is suspected to be PDS rice, it is reasonable to entertain the apprehension that such person has indulged in or attempted to divert PDS rice and therefore will be guilty of violation of 2001 Order and by implication guilty of violating EC Act and consequently the order of preventive detention can be passed under the Act against such persons. If any such preventive detention orders are passed, such orders cannot be said to be lacking total jurisdiction. It is further contended by the respondents that the petitioner in W.P.No.35077 of 2004 cannot avoid execution of Detention Order but must first surrender to the authorities and thereafter when the grounds of detention is served he can challenge the order of detention by filing a writ of Habeas Corpus on the permissible grounds. 6. I have heard Mr.B.Kumar, learned Senior Counsel and Mr.P.S.Raman, learned Additional Advocate General. 7. Mr.B.Kumar, learned senior counsel while elaborating the above said contentions put forth by the petitioners submitted that in the decision reported in Alka Subhash Gadia case https://hcservices.ecourts.gov.in/hcservices/ (Additional Secretary to the Government of India and Others Vs.Smt. Alka Subhash Gadia and another (1992 Supp(1) SCC 496) the Apex Court has laid down the following 5 grounds on which detention orders at the pre-execution stage can be entertained and relief granted viz., :- (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. 8. According to the learned senior counsel by virtue of coming into force of the 2002 order, the 1982 order has become invalid and therefore the petitioner in W.P.No.35077 of 2004 and other persons in respect of whom relief is sought for in the batch of writ petitions could not be said to have committed violation of the EC Act and according to him the violation of the orders made under the EC Act which is punishable under Section 7 of the EC Act is a condition precedent before the power under the Black Marketing Act can be exercised. According to the learned senior counsel the petitioner in W.P.No.35077 of 2004 and other persons could not be said to have committed any offence under the EC Act as the 1982 Order ceases to have force and in the FIRs filed against the petitioner in W.P.No.35077 of 2004 and other persons the allegations levelled against them are that they have contravened Sections 4(1), 19(1) of the Tamil Nadu Essential Trade Articles (Regulation of Trade) Order 1984 and Rule 2(1), 6A of TNSTC RDCS Order 1982 r/w Section 7(1)(a)(ii) of the EC Act 1955. Therefore, the impugned order of detention cannot be executed against the petitioner in W.P.No.35077 of 2004 and no order of preventive detention can be passed against the other persons. 9. The learned senior counsel further submitted that the impugned order of detention passed against the petitioner in W.P.No.35077 of 2004 amounts to exercise of power for a wrong purpose. Since if the petitioner had not contravened the EC Act no order of preventive detention can be passed against him. It is further submitted that the same reasons will render the satisfaction reached by the Detaining Authority as one being passed on vague, extraneous and irrelevant grounds as the 1982 Order has no legs to stand. According to the learned senior counsel the norms laid down in Alka Subhash Gadia case are satisfied and therefore the W.P.No.35077 of 2004 is liable to be allowed. According to the learned senior counsel it would be a travesty of justice to require the petitioner to surrender and lose his liberty and then to challenge the order of detention. 10. Per contra, Mr.P.S.Raman, learned Additional Advocate General by relying upon the decision reported in Isha Beevi on behalf of the minor Umaiben Beevi and Others Vs. The Tax Recovery https://hcservices.ecourts.gov.in/hcservices/ Officer and Addl. P.A. to Collector, Quilon and Others ( AIR 1975 SC 2135 : (1976) 1 SCC 70) and Standard Chartered Bank and Others Vs. Directorate of Enforcement and Others ((2006) 4 SCC 278) submitted that the above writ petitions are premature and are not maintainable. According to the learned Additional Advocate General the Apex Court has entertained writ petitions on preventive detention matters when the detenu surrenders to the authorities and that too only under five (5) exceptional circumstances enumerated in the Alka Subhash Gadia case and the same has been reiterated in a series of decisions. In all the case before the Apex Court the aggrieved persons actually challenged the detention order already issued and in no reported case Detaining Authorities have been prevented by an issue of writ of mandamus from passing detention orders against the citizens. Therefore, according to the learned Additional Advocate General except W.P.No.35077 of 2004 all the other writ petitions are liable to be dismissed on the ground of being premature. 11. According to the learned Additional Advocate General all the contentions put forth by the writ petitioner in W.P.No.35077 of 2004 and on behalf of the other writ petitioners are liable to be rejected. According to the learned Additional Advocate General, provisions of the Black Marketing Act are attracted as the Act clearly contemplates preventive detention of any person under Section 3 of the Act. Section 3 of the Act merely requires the person threatened with detention to have been involved in the trading of essential commodity and Rice / Paddy continue to remain essential commodities as per Notification issued under Section 3 of the EC Act. Whether the action of detenu comes under the detaining legislation can only be examined after the detention order is passed. According to the learned Additional Advocate General, delicensing and liberlization of trading in rice and paddy as introduced in the 2002 Order relates only to free market rice and not to rice meant for Public Distribution System (PDS Rice) and the 2001 Order is saved in view of Clause 6 of the 2002 Order. 12. According to the learned Additional Advocate General, the 2001 Order clearly provides for certain offences relating to PDS rice. In particular, the explanation to Section 3 of the said order defines “diversion” as any action which results in the Essential Commodity not reaching the hands of the intended beneficiary after leaving Central Godown. If any individual person is found in possession of what is suspected to be PDS rice, apprehension that such party has indulged in or attempted diversion of PDS rice is reasonable. Such a person is therefore guilty of violation of PDS Order of 2001 and therefore also by implication guilty of violating EC Act. Therefore, according to the learned Additional Advocate General the impugned order of detention issued under the Black Marketing Act, 1980 cannot be said to be an action lacking total jurisdiction. https://hcservices.ecourts.gov.in/hcservices/ 13. I have carefully considered the submissions made on either side and the materials available on record. 14. In Isha Beevi on behalf of the minor Umaiben Beevi and Others Vs. The Tax Recovery Officer and Addl. P.A. to Collector, Quilon and Others ( AIR 1975 SC 2135 : (1976) 1 SCC 70) the Apex Court has observed as follows: “ No occasion for the issue of a writ of mandamus can arise unless the applicants show non-compliance with some mandatory provision and seek to get that provision enforced because some obligation towards them is not carried out by the authority alleged to be flouting the law.” It is further observed by the Apex Court as follows: “In order to substantiate a right to obtain a writ of prohibition from a High Court or from this Court, an applicant has to demonstrate total absence of jurisdiction to proceed on the part of the officer or authority complained against. It is not enough if a wrong section or provision of law is cited in a notice or order if the power to proceed is actually there under another provision.” The same proposition of law has been reiterated recently in the decision reported in Standard Chartered Bank and Others Vs. Directorate of Enforcement and Others ((2006) 4 SCC 278). “ It is settled by the decisions of this Court that a writ of prohibition will issue to prevent a tribunal or authority from proceeding further when the authority proceeds to act without or in excess of jurisdiction; proceeds to act in violation of the rules of natural justice; or proceeds to act under a law which is itself ultra vires or unconstitutional.” 15. As rightly contended by the learned Additional Advocate General though in the batch of writ petitions only issuance of writ of mandamus is sought for which in effect amounts to seeking of writ of prohibition only. In these batch of writ petitions, admittedly orders of detention are yet to be passed and the petitioners cannot speculate the grounds on which detention orders may be passed. Without even knowing the grounds of detention and the provisions of law contravened of which is made as a ground of detention are also not known and as such the alleged lack of jurisdiction on the part of the respondents cannot be presumed. It is not the case of the writ petitioners that the respondents 1 & 2 do not have jurisdiction to pass the order of preventive detention under the Black Marketing Act and therefore the authorities vested with statutory powers under the Act cannot be prevented from exercising such powers. Therefore, as laid down in Isha Beevi on behalf of the minor Umaiben Beevi and Others Vs. The Tax Recovery Officer and Addl. P.A. to Collector, Quilon and Others ( AIR 1975 SC 2135 : (1976) 1 SCC 70) if the petitioners https://hcservices.ecourts.gov.in/hcservices/ are to succeed they must first demonstrate total absence of jurisdiction to proceed on the part of the respondents. Therefore, in the considered view of this Court the above batch of writ petitions seeking issue of writ of mandamus forbearing the respondents from passing orders of detention under Section 3 (1) of the Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act, 1980 are not maintainable. The writ petitions are premature and not maintainable and accordingly the above batch of writ petitions stand dismissed. 16. However, W.P.No.35077 of 2004 stands on a different footing since, in this case, as pointed out above, the order of detention has already been passed and its validity is challenged at the pre-execution stage. 17. The question whether the detenu or anyone on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it has been examined by the Apex Court on various occasions. One of the leading judgments on the subject is Alka Subhash Gadia case. In paras 30, 31 & 32 of the said judgment, it was observed by the Apex Court as under: “ 30. ......The powers under Articles 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the courts have over the years evolved certain self- restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri Jain's present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self-restraints and norms and exercise their said powers, in