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Judgment
N. Paul Vasanthakumar, J.—These writ petitions are filed by the respectivePetitioners praying to issue a Writ of Mandamusforbearing the
Respondents from detaining thePetitioner in W.P. No. 16217/2011; Petitioner''s husbandin W.P. No. 16432/2011; Petitioner''s brother inW.P.
No. 16706/2011; and the Petitioner''s sister''shusband in W.P.N.18446/2011 u/s 3(1) of thePrevention of Black Marketing and Maintenance of
Supplyof Essential Commodities Act, 1980 (Act 7 of 1980)(hereinafter referred to as the ""Act"").
In W.P. No. 16217 of 2011, according to thePetitioner, he is running modern rice mill in the nameand style of M/S. Anandam Modern Rice at
Dindigul and heis also the Secretary of the Rice Mills Owners''Association (Tamil Nadu Civil Supplies Corporation) forthe past several years. He
was appointed as hullingagent in Tamil Nadu Civil Supplies Corporation. Thesaid Corporation used to supply raw paddy for hullingpurpose and
the resultant rice are to be supplied tothe Tamil Nadu Civil Supplies Corporation and charges will be paid to the Petitioner. The Petitioner
wasarrested in the year 2008 by the fourth Respondent andhanded over to the Inspector of Police, C.S.,CID,Madurai. The District Collector
passed the detentionorder on 7.11.2008 and thereafter the Advisory Boardfound that the order of detention was not valid and hewas released.
Again on 17.7.2010, the fourthRespondent filed First Information Report No. 304/2010alleging that in his godown, 188 bags of PublicDistribution
System rice was stored and hence he wasarrested. According to the Petitioner, the action ofthe fourth Respondent is motivated. Again, a case
wasregistered by the fourth Respondent in CrimeNo. 344/2011 and the Petitioner was arrested on14.6.2011 and subsequently he was released
on bail. Dueto the said registering of case, the Petitionerapprehends that he may be detained u/s 3(1) of the said Act.
In W.P. No. 16432 of 2011, the Petitioner''shusband Kolanji is running a Flour Mill atKallakurichi. Petitioner''s husband was originally doing
rice business and he was arranging transport of ricebags in lorries from various trader''s business premisesto various Districts and States under the
cover ofvalid permits. The Government of India introduced thescheme by name SGRY Scheme for helping poor families,who are hailing from the
village side. As per the saidscheme, the coolies are distributed by way of rice andmoney. The Petitioner''s husband was arrested on9.7.2011 by
the third Respondent and the thirdRespondent recommended to the second Respondent forregistering the case under Act 7 of 1980. ThePetitioner
apprehends that the second Respondent istaking steps to detain her husband Kolanji under thesaid Act.
In W.P. No. 16706 of 2011, the Petitioner''sbrother is running a rice mill in the name and style of''Kumaran Rice Mill'' and he was appointed as
hullingagent by the Tamil Nadu Civil Supplies Corporation,authorised to hull paddy supplied by the Tamil NaduCivil Supplies Corporation for the
purpose ofdistribution through the Public Distribution System. On 1.8.2010, the Inspector of Police, Chennimalaiseized two lorries far away from
the Petitioner''sbrother''s rice mill on the alleged confession statementof the rice owner that he was going to sell the same tothe Petitioner''s brother.
Petitioner''s brotherapproached this Court and obtained anticipatory bail.As per the terms and conditions of the Tamil Nadu CivilSupplies
Corporation, Petitioner''s brother cannot dealwith any private paddy and rice. According to thePetitioner, the third Respondent-Police came to
thePetitioner''s brother''s house on 13.7.2011 and asked himto co-operate with them for detaining him u/s 3(1) of the said Act. According to the
Petitioner thethird Respondent did not seize any rice fromPetitioner''s brother, but they are going to set up afalse case and going to register FIR
against thePetitioner''s brother. Hence, the Petitioner filed thiswrit petition with the prayer as stated above.
In W.P. No. 18446 of 2011, the Petitioner''ssister''s husband A.Kannan was running rice businessupto the year 2010. According to the
Petitioner, asthe police registered false case against his sister''s husband, he stopped the said rice business in the year2010 itself and now he is
doing coolie work in ahulling mill at Thirukkanur, Puducherry UnionTerritory. Originally, Petitioner''s sister''s husbandwas arranging transport of
rice bags in lorries fromvarious trader''s business premises to various Districtsand States under the cover of valid permits. TheGovernment of India
introduced the scheme by name SGRYScheme for helping poor families, who are hailing fromthe village side. As per the said scheme, coolies
aregiven by way of rice and money. The Petitioner''ssister''s husband was arrested on 2.8.2011 by the fourthRespondent and the Petitioner
apprehends that thefourth Respondent recommended to the second and thirdRespondents for registering the case under Act 7 of1980 and the
second and third Respondents are takingsteps to detain his sister''s husband under the saidAct. Hence this writ petition.
As the issue raised in these writ petitionsare common, all these writ petitions are dealt with bythis common order.
When the writ petitions were posted foradmission on 7.7.2011 and 12.7.2011, viz.,W.P. Nos. 16217 and 16432 of 2011, the learned
AdditionalGovernment Pleader was directed to take notice and toget instructions.
The learned Additional Government Pleader forthe Respondents, on instructions, submitted that theprayer sought for in these writ petitions is
merely onapprehension and No. writ can be issued merely on thebasis of apprehension. Section 3 of the Act empowersdetention of any person for
violation of the provisionsof the Act and only if detention order is passed, thesame can be questioned. In support of his contention,the learned
Additional Government Pleader relied on ajudgment of K.Mohanram,J., made in W.P. No. 12292 of 2007etc., dated 15.5.2007, wherein similar
prayer made waselaborately dealt with and held that the writ petitionsare not maintainable and observed that if any detentionorder is passed it is
open to the person concerned tofile Habeas Corpus Petition by raising permissiblegrounds. The learned Additional Government Pleader also cited
the decision of the Supreme Court reported in Union of India (UOI) and Others Vs. Muneesh Suneja, and Division Bench of Bombay High Court
made inCrl.W.P. No. 103 of 2009, etc, dated 5.1.2001.
The learned Counsel for the Petitioners, on the other hand, submitted that if a detention order is passed, the petitioners'' fundamental right will be
affected and therefore, the writ petitions filed at this stage are maintainable.
I have considered the rival submissions madeby the learned Counsel for the Petitioners as well asthe learned Additional Government Pleader
for theRespondents.
The issue regarding the maintainability of thewrit petitions was considered elaborately in the abovereferred decision of this Court in W.P. No.
12292 of 2007etc., dated 15.5.2007. I am in agreement with theviews expressed by the learned Judge, as the learnedJudge has followed several
decisions of the Supreme Court to arrive at a conclusion.
In support of his contention, the learnedcounsel for the Petitioners relied on the followingdecisions:
i) Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia and Another,
ii) (2008) 16 SCC 14 (Deepak Bajaj v. State ofMaharashtra and Anr.).
The decisions cited above by the learnedcounsel for the Petitioners are relating to thechallenge made to the detention order or filed afterthe
order was passed, but before the actualdetention/arrest and the said decisions are notapplicable to these writ petitions i.e, pre-executionstage.
Here the Petitioners are praying for forbearingthe Respondents from detention u/s 3(1) ofthe Act merely on apprehension. Section 3(1) of the
Actreads as follows:
Power to make orders detaining certain persons.-(1) TheCentral Government or a StateGovernment or any officer of theCentral Government,
not below therank of a Joint Secretary to thatGovernment specially empowered forthe purposes of this section by thatGovernment, or any officer
of aState Government, not below the rankof a Secretary to that Governmentspecially empowered for the purposesof this section by that
government,may, if satisfied, with respect toany person that with a view topreventing him from acting in anymanner prejudicial to themaintenance of
supplies ofcommodities essential to thecommunity it is necessary so to do,make an order directing that suchperson be detained.
Thus, power is vested with the Respondents to detain a person, if grounds are available to prevent a person.
It is a well accepted principle of law thatnormally writ of mandamus cannot be issued merely onapprehension as No. premature exercise of
power is permissible. Passing of detention order is based onsubjective satisfaction of the authority competent topass orders. Whether the order
passed is vitiated onany ground or not, can be tested only after the orderwas passed and not before that. In paragraph 15 of the order of this
Court in W.P. No. 12292 of 2007 etc., dated 15.5.2007, K.Mohanram,J., held thus,
15......... in the batch ofwrit petitions only issuance of writof mandamus is sought for which ineffect amount to seeking of writ ofprohibition only. In
these batch of writ petitions, admittedly orders ofdetention are yet to be passed and the Petitioners cannot speculate thegrounds on which
detention orders may be passed. Without even knowing the 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 assuch the alleged lack of jurisdictionon the part of the Respondents cannotbe
presumed. It is not the case ofthe writ Petitioners that theRespondents 1 and 2 do not havejurisdiction to pass the order of preventive detention
under the BlackMarketing Act and therefore theauthorities vested with statutorypowers under the Act cannot beprevented from exercising
suchpowers. Therefore, as laid down in Isha Beevi on behalf of the minor 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, if the Petitioners are to succeed theymust first demonstrate total absenceof
jurisdiction to proceed on thepart of the Respondents. Therefore,in the considered view of this Courtthe above batch of writ petitionsseeking issue
of writ of mandamusforbearing the Respondents frompassing orders of detention underSection 3(1) of the Prevention ofBlack Marketing and
Maintenance ofSupply of Essential Commodities Act,1980 are not maintainable. The writpetitions are premature and notmaintainable and
accordingly theabove batch of writ petitions standdismissed.
Therefore, these writ petitions are dismissed following the order made in W.P. No. 12292 of 2007 etc.,dated 15.5.2007. No. costs.
Consequently, connectedmiscellaneous petitions are also dismissed.