Shadul Mohd. vs Collector and District Magistrate, Medak District and another

Gulam Mohammed, J

This writ petition is filed praying for a writ of habeas corpus declaring the action of the first respondent in his proceedings Ref. No.C1/431/M/99, dated 10-6-1999 detaining Mohammed Sahem S/o. Sirajuddin u/s 3(2)(a) read with 3(1)(a) of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act of 1980 as illegal and to direct the respondents to produce the detenu before this Court and for his release.

The Collector and District Magistrate, Medak at Sangareddy, i.e., first respondent herein in 10-6-1999 vide reference No. C1/431/M/99 in exercise of powers vested to him u/s 3(2)(a) read with Section 3(1)(a) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 passed an order of detention of one Mohammed Saleem S/o. Mohammed Sirajuddin and directed that he should be detained from the date of service of the order and to be lodged at the District Jail, Secunderabad.

In support of the writ petition, an affidavit is filed by one Shadul Mohammed S/o. Khomroddin alleging that his junior maternal uncle was served with a detention order dated 10-6-1999 and was arrested and lodged at Central Prison, Musheerabad, Hyderabad. It is alleged that the Government has not placed the grounds of detention before the Advisory Board constituted, and by not placing the grounds of detention before the Advisory Board by 30-6-1999 has violated the mandatory provisions of Section 10 of the Act and submitted that the detention order is liable to be quashed. It is further alleged that detenu knows only Telugu and Urdu and has made a representation to the respondents on 11-6-1999 for supply of translated copies of the orders and the same were not furnished. It is also alleged that the detenu did not had the opportunity to make a representation. Lastly, it is alleged that the detenu was not produced before the Advisory Board and the Advisory Board has not submitted its report to the Government within seven weeks from the date of detention.

A detailed Counter-affidavit is filed by the first respondent denying the allegations made in the affidavit in support of the writ petition. With regard to the first allegation, it is submitted that the contention of the petitioner that the detention order dated 10-6-1999 was served on the detenu on the same day and he was arrested in pursuance of the detention order and lodged in Central Prison, Musheerabad, Hyderabad is not correct and the same is denied. It is further submitted that since the date of registering the Crime No.1/99 the detenu is absconding and the detenu was taken into custody on 9-6-1999 and produced before the Judicial First Class Magistrate, on 10-6-1999 and the learned Magistrate remanded the detenu to the Judicial custody for a period of 15 days and was lodged at District Prison, sangareddy. It is submitted that the order of detention was served on the detenu on 12-6-1999 as per Section 10 of the Act and the order of detention was placed before the Advisory Board on or before 2-7-1999 including the day of order of detention. The order of detention was served on the detenu on 12-6-1999 along with grounds of detention and the same were acknowledged by the detenu on the same day. The grounds of detention indicate the instances which prove that the detenu was involved in rice and paddy smuggling activities. It is submitted that the detenu is owner of the Lorry bearing No.ABT 4944 utilizing his lorry for transporting the rice and paddy to other States illegally for getting pecuniary profits unlawfully. The Inspector of Police Vigilance Cell, Civil Supplies Department, Medak district intercepted the lorry owned by the detenu on 1-12-1997 at about 4.00 a.m. while transporting 100 quintals of BPT Rice to Bidar of Karnataka State without any valid permit or licence. In that incident a case in Crime No.71/VC-MDK/97 was registered as action therein is contravening of clause 3(1) of A.P. Schedule Commodities Dealers (Licencing and Distribution) Order, 1982 and other control orders and violation of Sections 7 and 8 of the Essential Commodities Act. The Investigation made by the concerned authorities in the case discloses that at the behest of the unauthorised traders who were indulging in purchase of paddy and convert the same into rice and transporting the said rice to Karnataka State without necessary release orders from the competent Authority. The investigation further reveals that the detenu has collected higher amount as a transporting charges for smuggling the rice to the State of Karnataka. It is also came to light that the detenu having knowledge of about the smuggling of rice, by those persons aided them by lending his lorry. The final order and 6-A of Essential Commodities Act shows that an order dated 2-7-1998, 40% of the seized stocks was confiscated and a fine of Rs.5,000/- was imposed on the detenu for his involvement in smuggling of rice to the Karnataka State.

It is submitted that on 31st May, 1998 while the detenu was illegally transporting the paddy in his lorry, the same was intercepted at the outskirts of Degulvadi village which is 2 K.Ms. from the border of Karnataka State. The investigation in this case reveals that the detenu loaded 96 quintals of paddy and proceeded in the lorry along with paddy to smuggle the same to Lathur of Maharashtra State. The, detenu was arrested as he was very much available in the cabin of lorry itself along with paddy, the total property worth about Rs.4,41,280/- was seized under the cover of mediators report, a case in Crime No.48/VC-MDK/98 was registered under various Control Orders read with Section 7 of the E.C.Act, 1955. The investigation further discloses that the detenu purchased the paddy from the villagers and got it loaded in his lorry and transporting the same to Lathur in Maharashtra State without any valid documents. The report u/s 6-A filed before the Collector and Civil Supplies, Medak district at Sanga Reddy and the same is pending for finalisation.

It is further submitted through the above cases were registered against the alleged detenu but he was failed to mend his behavior and continued in indulging the illegal transport of rice and paddy. The Deputy Superintendent of Police, Vigilance Cell, Civil Supplies Department, Hyderabad intercepted the lorry belonging to the detenu on 6-1-1999 at about 5.45 p.m. The driver of the lorry tried to speed away with the load of paddy. But the department officials able to intercept the lorry, it was found with loaded of 156 bags of paddy to smuggle the same to Maharashtra State, on inspection no valid licence or permit was available in the lorry to transport the paddy therein. The lorry along with paddy was seized and apprehended the driver under cover of Panchanama. The investigation made in this case discloses that the detenu purchased the paddy and got it loaded and instructed the driver to transport the paddy to Lathur of Maharashtra State. Since the date of registering the case in Crime No. 1/99 the detenu is abscounding and continuing his illegal activities of smuggling rice and paddy across the Border. The activities of the detenu is contravene of various Control Orders read with Sections 7 and 8 of B.C. Act. A report of 6-A filed before the Collector and the same is pending for enquiry,

While the matter stood thus, basing on the credible information the Sub-Inspector of Vigilance Cell with the assistance of his staff laid await at the Chowrastha near Ganga Ramthanda road proceeding from Karsgutthi to Bidar of Karnataka State on the intervening night of 25/26th May, 1999. On that date at about 4.30 a.m. a lorry belonging to the detenu i.e., ABT 4944 which was reached to the Thanda from Narayankhed side without caring the signal given by Sub-Inspector and Vigilance Staff, they identified that the alleged detenu is in cabin along with Driver and cleaner. This incident was recorded under cover of Panchanama conducted in the presence of the mediators by the concerned Vigilance Officer and Sub-Inspector. The action of the detenu in this episode also contravening the provisions of the various Control Orders under Sections 7 and 8 of the B.C. Act.

It is submitted that launching, of prosecution against the detenu under the punitive laws is a long run process and not able to deter the detenu in preventing him further indulging from acting in a manner prejudicial to the maintenance and easy availability of supplies of commodities, rice and paddy which are essential to the community. In the interest of the public with a view to safe guard the interest of common man basing on the metrial placed before me by the Sponsoring Authority, I am satisfied and passed the order of detention u/s 3(2)(a) read with Section 3(1) of the Provisions of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 in order to prevent the detenu further acting in a manner prejudicial to the Maintenance of Supplies (Rice and Paddy) essential to the community. I respectfully submit that the action and activities of the detenu leads miseries to the common man.

With regard to the - second allegation, it was stated in the counter-affidavit that the order of detention was placed before the Advisory Board on 1-7-1999 as required u/s 10 of the Act together with the following documents.

(a) Copy of the Order of Detention,

(b) Copy of the Grounds of Detention together with its supporting material,

(c) Copy of G.O. Rt. No.2873 G.A.D. dated 19-6-1999 approving the detention by Government.

The said letter bearing No.370/L & O-II/A1/99-4 dated 3-7-1999 was addressed by the Chief Secretary to the Chairman of the Advisory Board. In the last paragraph of the letter, it is clearly stated that no representation was received from the detenu or on his behalf against the detention order. The said letter was acknowledged by the members of the Advisory Board.

With regard to the contention of the petitioner that the detenu made a representation dated 11-6-1999 for supply of translated copies of the order in Telugu or Urdu is utterly false and incorrect. It is stated in the counter-affidavit that the detention order was served on the detenu on 12-6-1999.

With regard to the last contention that as per Section 11(1) of the Act the Advisory Board has not submitted its report within seven weeks from the date of detention and no reasonable opportunity was given to the detenu to produce witnesses, the counter-affidavit clearly indicate that the Advisory Board has submitted its report to the Government within seven weeks from the date of detention as the detenu was detained on 12-6-1999, the Advisory Board has to submit its report on or before 30-7-1999 and the Advisory Board met on 28-7-1999 and the detenu has been given an opportunity of personal hearing and the detenu was assisted by his friend one Raju. The original report of the Advisory Board was placed before the Court. The order of the Advisory Board is as below:

"We have perused the grounds of detention and all the connected records and also representation of the detenu. We have also heard the detenu who has been produced before us. And also heard detenu''s friend (Sri M.Raju).

Opinion

We are of the opinion that there is sufficient cause for the detention of the detenu Sri Mohammed Saleem, Son of Sirajuddin."

On 19-7-1999, The Chairman of the Advisory Board addressed a letter to the Chief Secretary, Government of A.P., stating that the case of the detenu referred to the Advisory Board would be taken up for review at the meeting of the Advisory Board to be held on 28-7-1999 at 3.00 p.m. at "Lakeview Guest House, Raj Bhavan Road, Hyderabad. In the said letter the name of the detenu was at Serial No.1. After receiving the letter from the Chairman, Advisory Board, on 20-7-1999 a wirelsess communication was sent to the first respondent and to the Superintendent Central prison, Secunderabad with regard to the meeting of the Advisory Board. In addition to the above, a memo Bearing No.370/L&O-II/A1/99-10, dated 20-7-1999 was addressed to the Superintendent of Central Prison with a request to intimate the date, time and venue of the Advisory Board meeting to the detenu in writing and it was also stated that the detenu should also be informed of his right to represent before the Advisory Board by any person of his choice, other than a lawyer and to keep the said person ready at the time of the Advisory Board Meeting. In pursuance of the said letter addressed by the Government, the Jail Authorities informed the contents of the letter dated 20-7-1999 to the detenu and the detenu acknowledged the same on 21-7-1999 stating that he understood the contents of the letter and he is willing to attend the meeting on that day. The Superintendent of Central Prison addressed a letter to the Government dated 23-7-1999 stating that the detenu would be produced before the Advisory Board on 28-7-1999 on 28-7-1999, the detenu along with one Mr. Raju who was suggested by the detenu to assist him were attended before the Advisory Board and made their submissions. After appearing before the Advisory Board along with Mr. Raju, the detenu requested one week time for producing the witnesses. The proceedings of the Advisory Board were concluded on 28-7-1999.

Counsel for petitioner Mr. E.V.Bhagiratha Rao vehemently contended that the Advisory Board ought to have offered the petitioner a reasonable opportunity for producing his witnesses. Infact, in the instant case an opportunity was given to the detenu to get ready with the witness and keep him ready for hearing on 28-7-1999. The Last date for submission of the report by the Advisory Board to the Government was expiring on 30-7-1999 and the detenu was aware of this fact and he ought to have got ready with the witness on the scheduled day on which date the meeting was fixed by the Advisory Board. In view of the facts and circumstances of the case, we are of the view that a reasonable opportunity was given to the detenu.

Learned Counsel for the petitioner relied upon a judgment of the Supreme Court in A.K. Roy and Others Vs. Union of India (UOI) and Others, . The relevant paragraph is as follows:

"Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner. Every person whose interests are aversely affected as a result of the proceedings which have a serious import is entitled to be heard in those proceedings and be assisted by a friend. A detenu, taken straight from his cell to the Board''s room, may lack the ease and composure to present his point of view. He may be ''tongue-tied, nervous, confused or wanting in intelligence" and if Justice is to be done, he must at least have the help of a friend who can assist him to give coherence to his stray and wandering ideas. Incarceration makes a man and his thoughts dishevelled. Just as a person who is dumb is entitled, as he must, to be represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law. It may be that denial of legal representation is not denial of natural Justice per se, and therefore, if a statute excludes that facility expressly, it would not be open to the Tribunal to allow it. Fairness, as said by Lord Benning M.R., in Maynard v. Osmand, (1977) 1 QB 240, 253 can be obtained without legal representation. But, it is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility.

''The last of the three rights for which Sri Jethmalani contends is the right of the detenu to lead evidence in rebuttal before the Advisory Board. We do not see any objection to this right being granted to the detenu. Neither the Constitution nor the National Security Act contains any provision denying to the detenu the right to present his own evidence in rebuttal of the allegations made against him. The detenu may therefore offer oral and documentary evidence before the Advisory Board in order to rebutt the allegations which are made against him. We would only like to add that if the detenu desires to examine any witnesses, he shall have to keep them present at the appointed time and no obligation can be cast on the Advisory Board to summon them. The Advisory Board, like any other Tribunal, is free to regulate its own procedure within the constraints of the Constitution and the statute. It would be open to it, in the exercise of that power to limit the time within which the detenu must complete his evidence. We consider it necessary to make this observation particularly in view of the fact that the Advisory Board is under an obligation u/s 11(1) of the Act to submit its report to the appropriate Government whithin seven weeks from the date of detention of the person concerned. The proceedings before the Advisory Board have therefore to be completed with the utmost expedition."

In the instant case, the detaining authority was satisfied with regard to the conduct of the detenu in lending his lorry for illegal transportation of the essential commodities to the neighbouring States without any valid licence and permit as required under law. The three instances indicated in the grounds of detention clearly demonstrate that the detenu was indulging and involving himself in the smuggling activities by lending his lorry and aiding and assisting the illegal transaction.

Having regard to the facts and circumstances of the case and compelling circumstances and persistent attitude of the detenu and by taking into account the relevant material, the detention order was passed in public interest.

Learned Counsel for petitioner further relied upon the judgment of Supreme Court in State of Punjab Vs. Sukhpal Singh, . The relevant portion is as follows:

"Admittedly, the detenu was arrested on 28-5-1988. The total period for Advisory Board''s report u/s 14A(2)(d)(i) was five months and three weeks. Reference to Advisory Board was made on 26-8-1988. So the period would expire on or about 19-11-1988. The Board fixed 12-11-1988 for its sitting. The detenu prayed for adjournment as because of frozen joint he was unable to perform ablution and tie his turban. Whether that was a lame excuse or not need not be decided. The fact remained that he was told of another sitting of the Board. Having a week in hand it would perhaps have been possible to hold another sitting of the Board and give the detenu an opportunity which however, did not come. Of course, the decision was that of the Advisory Board and not of the State Government. The High Court rightly observed that there was a communication gap. It is true that the Advisory Board is not a judicial body. It is charged with the responsibility of advising the Executive Government but when it advises in favour of the detenu, namely that there was no sufficient cause for detention, it would be binding upon the Government u/s 12(2) of the Act to release the detenu forthwith. The detenu in this case did not have that opportunity to show that there was no sufficient cause for his detention. Expressing inability to appear once could not have been treated as the detenu''s not desiring to be heard u/s 11(2) of the Act. In fact he desired to be heard and to produce his witnesses. The result was that despite the State Government''s communication he was deprived of this opportunity. What then would be the result."

There is no quarrel with regard to the said proposition. In the instant case having regard to the conduct of the detenu and also with regard to his involvement in the illegal transaction by lending his lorry for his personal unlawful gain. The detenu was given reasonable opportunity of being heard by the Advisory Board.

We have perused the entire record pertaining to this case, we are satisfied that there is no infraction of the mandatory requirement of Section 11(1) of the said Act. Infact, the Advisory Board consists of three retired learned Judges of this Hon''ble Court and after considering the matter and after heraing the detenu and his friend Mr. Raju, the Advisory Board has submitted its report to the Government on 28-7-1999.

Considering the above submissions made by both the parties and having regard to the facts and circumstances of the case, we are of the view that there are no merits in the writ petition. Accordingly, the Writ Petition is dismissed. No costs.