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Judgment
Justice K. Mohan Ram
In the above Habeas Corpus Petition, the detention of S.Rajesh, son of Saminathan, is being challenged by his wife. The detenu was detained as
a Black-marketeer u/s 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980 (Central Act 7
of 1980) (hereinafter will be referred to as ""the Act"") by an impugned order of detention passed in proceedings C.No.
08/PBMMSEC.Act/IS/2011.
Since the above Habeas Corpus Petition could be disposed of on the legal submission made by the learned counsel for the petitioner, we are
not referring to the factual aspects relating to the passing of the order of detention.
Heard the learned counsel on either side.
Learned counsel for the petitioner submitted that the order of detention was passed on 09.09.2011 and the report of the Advisory Board was
received by the Government on 21.10.2011, but the order of detention was confirmed only on 19.12.2011 i.e., after the period of three months.
The contention of the learned counsel for the petitioner is that within a period of three months, the order of detention has to be confirmed, but, in
this case, the order of detention was admittedly confirmed only on 19.12.2011; the three months period from the date of detention expired on
09.12.2011, whereas, admittedly, the order of confirmation has been passed on 19.12.2011. In support of the said contention, the learned counsel
based reliance on a decision of a Division Bench of this Court reported in 1991-L.W. (Crl.) 354 (T. Amirtharaj v. The State of Tamil Nadu and
two others). Learned counsel further submitted that the detenu made a representation to the third respondent on 15.09.2011 through his
Advocate; the said representation had admittedly been received by the third respondent on 23.09.2011, but according to the learned counsel, the
said representation has not yet been disposed of; the non-consideration of the representation sent by the detenu through his counsel vitiates the
order of detention and on that ground also, the order of detention is liable to be set aside. In support of the said contention, the learned counsel
based reliance on a decision of the Apex Court reported in Smt. Shalini Soni and Others Vs. Union of India (UOI) and Others, ).
On the aforesaid submissions the learned Additional Public Prosecutor (Crl. Side) for the respondents 1 and 2 and the learned Central
Government Standing Counsel for the third respondent were heard.
Learned Additional Public Prosecutor (Crl. Side) appearing for the respondents 1 and 2 submitted that in the grounds of detention furnished to
the detenu it has been specifically mentioned that any representation sent by the detenu to the Detaining Authority and respondents 1 and 3 will be
considered and it has not been stated specifically that the representation could be made by the detenu through his Advocate, therefore, the learned
Additional Public Prosecutor submitted that the representation sent by the detenu through his Advocate need not be considered within a specified
time; even if there is any delay in disposal of the representation sent by the detenu through his Advocate, it will not vitiate the order of detention.
Learned Central Government Standing Counsel appearing for the third respondent submitted that the third respondent has filed a counter
affidavit explaining the circumstances under which the representation could not be considered. He submitted that the representation from the
Advocate of the detenu was received on 23.09.2011 and subsequently the English version of the detention order, approval of State Government
and supporting documents were received from the Government of Tamil Nadu, on 26.09.2011 by letter, dated 03.10.2011; the Central
Government requested the State Government to furnish the factual position / clarifications on the points raised in the representation, dated
15.09.2011, followed by a reminder dated 19.10.2011, but the same has not been received by the third respondent and that was the reason for
the non-consideration of the representation dated 15.09.2011.
We have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record.
Before considering the aforesaid submissions made by the learned counsel for the petitioner, it would be relevant to refer to the material
provisions of the Act.
As per Section 8 of the Act, when a person is detained in pursuance of a detention order, ordinarily, within five days and in exceptional cases,
for reasons to be recorded in writing, not later than ten days from the date of detention, the grounds of detention have to be furnished to the
detenu. u/s 9 of the Act, the Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards
for the purposes of this Act. As per Section 10 of the Act, in every case where a detention order has been made under this Act, the appropriate
Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it u/s
9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the
order has been passed by an officer referred to in sub-section (2) of Section (3), also the report by such officer under sub-section (3) of that
Section. Section 11 of the Act prescribes the procedure of Advisory Boards. After considering the materials placed before it and, after calling for
such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the
appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned
desires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks from the date of the
detention.
For the purpose of this case, Section 12 of the Act is very relevant, which reads as follows:-
Action upon the report of Advisory Board. -(1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause
for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for
such period as it thinks fit.
(2) in any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned,
the appropriate Government shall revoke the detention order and cause the person to be released forthwith.
A reading of Section 12(1) of the Act shows that if the report of the Advisory Board discloses that there are sufficient cause for the detention of a
person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it
thinks fit. But if the representation of the Advisory Board shows that there is no sufficient cause for the detention of the person concerned, the
appropriate Government shall revoke the detention order and cause the person to be released forthwith. Section 12 does not prescribes any
particular period for confirmation of the order of detention either from the date of passing of the order of detention or from the date of receipt of
the report from the Advisory Board. Therefore, it was contended by the learned Additional Public Prosecutor that when Section 12 itself does not
contemplate any particular period for confirmation of detention order the fact that in this case, the order of detention came to be confirmed after
the expiry of the period of three months will not vitiate the order of detention.
In the decision reported in 1991-L.W. (Crl.) 354 (referred to supra) a Division Bench of this Court, basing reliance on a decision of the Apex
Court in the case of Micki Khan v. State of West Bengal reported in AIR 1972 S.C. 2262 wherein the Apex Court has laid down as follows,
... that under the mandatory provisions of the Article 22(4) of the Constitution not only should the report of the Advisory Board be received within
three months from the date of detention, but the confirmation and continuance must also be within three months. In as much as the confirmation in
all these cases has not been made within three months, the detention is not valid. Accordingly, the petitions are allowed and the petitioners are
directed to be released forthwith.
has held that the order of detention should be confirmed within three months from the date of detention order and in that case, as the order of
detention was not confirmed within three months, the order of detention was quashed. The said decision squarely applies to the facts of this case.
As in this case also, admittedly, the report of the Advisory Board was received on 09.12.2011 but the order of detention was confirmed only on
19.12.2011 i.e., after the expiry of the period of three months, namely, 09.12.2011. Hence the non-confirmation of the order of detention within a
period of three months from the date of passing of the detention order vitiates the order of detention and on that ground the order of detention is
liable to be quashed and accordingly quashed.
As far as the contention of the learned counsel for the petitioner that the Central Government / the third respondent herein had not disposed of
the representation of the detenu sent through his Advocate so far is concerned, the said contention is answered already by the Apex Court in the
decision reported in Smt. Shalini Soni and Others Vs. Union of India (UOI) and Others, ). In that decision, one of the main contention of the
learned counsel for the petitioner therein was that the representation dated July 27,1980 made by the detenu through his Advocate was never
considered by the Administrator and no orders had been passed thereon till the date of hearing of the petition. The contention of the respondent
was that only copies of certain documents alone were sought for and there was no specific request for setting aside the order of detention, but the
said contention of the respondents was rejected. In paragraph 4 of the said decision, the Apex Court has observed as follows:-
4.... The representation has not to be made in any prescribed form. There is no formula nor any magical incantation like ""open sesame"" to be
repeated or chanted in order to qualify a communication as a representation. So long as it contains a demand or a request for the lease of the
detenu in whatever form or language couched and a ground or a reason is mentioned or suggested for such release, there is no option but to
consider and deal with it as a representation for the purpose of Art. 22(5) of the constitution.
and ultimately the Apex Court has held as the representation dated 27.07.1980 was admittedly not considered and on that ground, the detenu was
entitled to be set at liberty and accordingly allowed the appeal.
The facts of the present case and the facts of the case before the Supreme Court are similar. As pointed out by the Apex Court, there is no
particular format in which representation has to be sent. Whether the representation is directly sent by the detenu or through somebody
representing him or through his Advocate, the same has to be considered with all promptitude without delay and the same should be disposed of
without any delay. Therefore, the contention of the learned Additional Public Prosecutor that since the representation was sent by the Advocate of
the detenu and therefore it need not be considered cannot be countenanced. Therefore, on this ground also, the order of detention has to be set-
aside and accordingly set-aside.
In the result, the above Habeas Corpus Petition is allowed and the order of detention passed by the second respondent dated 09.09.2011 in
C.No. 08/PBMMSEC.Act/IS/2011 against the petitioner''s husband-S.Rajesh, is hereby set-aside. The detenu is directed to be set at liberty
forthwith, unless his presence is otherwise required in connection with any other case.