AI Structured Summary
Not yet generated for this judgment
Judgment
The Honourable Mr. Justice P.P.S. Janarthana Raja, J.—The Petitioner is the wife of the detenu-S. Hakim @ Mohammed Hakkim. The Petitioner has come forward with this Habeas Corpus Petition seeking for the relief of quashing the Detention Order in P.B.M.M.S.E.C./ACT/C.M.P. No. 02/2011 dated 23.06.2011 passed by the third Respondent, slapped on her husband detaining him as a "Black Marketeer" as contemplated under the provisions of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 ("Act" in short).
The brief facts of the case are as follows:
On 10.6.2011, when the Inspector of Police, Civil Supplies CID, Tiruchirappalli and his police party and flying squad were in surveillance against hoarding and smuggling of essential commodities, they received an information about hoarding of essential goods in the Godowns bearing Door Nos. 3/3, 2/4 and 2/40, North Street Ilankakurichi of Manapparai Taluk, Tiruchirappalli District. Immediately, they went there and when searched in the Godown bearing Door No. 3/3, they found 236 bags of PDS Rice each containing 50 kgs and the same was seized under cover of Mahazar in the presence of witnesses and similarly, they seized 114 bags of PDS rice in Door No. 2/4 and 53 bags of PDS rice in Door No. 2/40. In the enquiry, it was revealed that Door No. 3/3 was owned by one Pathumuthu, w/o. Mohamed Abdul Kadar and Door No. 2/4 was owned by one Mohamed Kasim (late) and now under custody of Pathumuthu and Door No. 2/40 was owned by one Mohamed Refeek. It is further revealed that the rice was used to be collected by 1) Hakkim @ Mohamed Hakkim of Manapparai 2) Mohamed Rafeek 3) Rathumuthu 4) Kamuludeen of Vaiyampatti and the same was transported by Hakkim @ Mohamed Hakkim for selling at a higher price. Hence, a case was registered in CSCID Cr. No. 499/2011 U/4 6(4) TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of EC Act, 1955. Later, Revenue Divisional Officer was directed to conduct an enquiry in the matter and to file a detailed report. The said R.D.O has also filed a detailed report stating that the detenue has been engaged in procuring and selling of PDS rice in a manner prejudicial to the maintenance of supplies of commodities essential to the community. Therefore, the detaining authority was satisfied that the detenu is a black marketeer. Therefore, he was detained by the impugned order of detention. Aggrieved by that, the Petitioner/wife of the detenu has filed the present Habeas Corpus Petition.
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 by the Central Government. He further submitted that a perusal of the detention order reveals that the detaining authority has relied on the R.D.O''s report but a copy of the R.D.O''s report was not given to the detenu. Therefore, there is clear violation of the provision of Section 8(1) of the Act. He further submitted that the detenu has made representation to all the Respondents, but the same was not considered by any of the authorities 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, the order of detention passed by the third Respondent has to be set aside.
Learned Additional Public Prosecutor appearing on behalf of the Respondents 2 to 4 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 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. However, the counsel admitted that the second Respondent-Government of Tamil Nadu, has not considered the representation of the detenu. Learned Central Government Standing Counsel appearing for the first Respondent has also supported the case of the learned Additional Public Prosecutor and argued on the same lines.
Heard the counsel and perused the order of detention under challenge. In paragraph No. 4 of the detention order, it is stated that Revenue Divisional Officer was directed to conduct a detailed enquiry and submit a report on the antecedents and activities of the detenue. The Revenue Divisional Officer, in her enquiry, has confirmed that the detenu has been engaged in procuring and selling of PDS rice and has also been acting in a manner prejudicial to the maintenance of Supplies of Commodities Essential to the community. Relying on the said report, the detaining authority came to the conclusion that the detenu is a black marketeer but in the record, it is seen that a copy of the R.D.O''s report was not furnished to the detenu. It is stated by the learned Additional Public Prosecutor that it was a confidential report and therefore, the same was not given to the detenu. It is a clear violation of the principles enunciated by this Court in the case of Mageswari v. Government of Tamil Nadu, rep. by its Secretary, Prohibition and Excise Department, Chennai and Anr. reported in (2011) 3 MLJ (Cri) 391 wherein the scope of Section 8(1) of the Tamil Nadu Act XIV has been considered, which is similar to Section 8 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980. Paragraph No. 7 of the said judmgment reads as follows:
of course, the language of Section 8(1) does not refer to the supply of copies of the documents along with the grounds of detention. It simply refers to the communication to the detenu of the grounds on which the order of detention has been made. But, however, it was superadded with the rider specifying the purpose for which the grounds are to be communicated. The purpose enshrined therein is to afford the detenu the earliest opportunity of making an effective representation against the order of detention to the Government. The mere supply of the grounds of detention unaccompanied by copies of the materials relied on by the detaining authority, is of no use for the purpose of making an effective representation, at the earliest opportunity, against the order of detention. Therefore, we are of the view that the supply, of copies of materials relied on along with the grounds of detention is also the requirement of the said provision to enable the detenu to make an effective representation at the earliest point of time. In other words, the supply of grounds of detention as contemplated in Section 8(1), will include the supply of the copies of the relied on documents also and this view will also be strengthened by the fact that the abstract order of detention could not have been passed even before preparing the grounds of detention stating the reasons.
In the light of the above decision, the detenu ought to have been given a copy of the relied on documents along with the detention order. There is no dispute that a copy of the R.D.O. was not furnished to the detenu. Therefore, it is a clear violation of the provision of Section 8(1) of the Act.
It is further stated by the Learned Counsel for the Petitioner that the representation sent on behalf of the detenu to the authorities was not at all considered and the learned Additional Public Prosecutor has admitted that they have not considered the representation. Further, it is seen that after passing the detention order, the State Government ought to have sent the detention order with the relevant papers to the Central Government. In this case, there is no material available on record to show that the State Government has sent all the relevant records as contemplated u/s 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 u/s 3(4) of the Act, the Central Government cannot exercise its power for revocation of the order u/s 14 of the Act. Section 14 of the Act reads as under:
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 u/s 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 the order is approved by the State Government under this Section, 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. There is no dispute that in the present case, the State Government has not sent all the relevant records as contemplated u/s 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 u/s 3(4) of the Act, the Central Government cannot exercise its power for revocation of the order u/s 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 3.8.2011 where in this Court 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 Ors. in which it is stated in Paragraph-8 as under:
u/s 3(4) of the prevention of Black marketing 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. u/s 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. u/s 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 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.
Further, the Supreme Court in the case of Kamleshkumar Ishwardas Patel Vs. Union of India (UOI) and Others, , considered the scope of prevention and detention and held in paragraph-48 as under:
By order dated 27-7-1993
made u/s 3 of the COFEPOSA Act by Shri Mahendra Prasad, Joint Secretary to the Government of India, an officer who had been specially empowered u/s 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 and second 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. In the present case, the detenu had sent a representation dated 28.06.2011 to all the Respondents, and therefore, they ought to have considered the above representation as per the above judgment of the Supreme Court. Non-consideration of the representation on the part of the Respondents is against the above judgment of the Supreme Court.
In the case of Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, , the Supreme Court has held in paragraph-39 as under:
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 Dalecase: (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 respondents 1 to 3. 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.
In the result, the Habeas Corpus Petition is allowed and the order of detention passed by the third Respondent in his Proceedings P.B.M.M.S.E.C./ACT/C.M.P. No. 02/2011 dated 23.06.2011 is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.