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Judgment
R. Banumathi, J.—Challenge in this Habeas Corpus Petition is to the detention order whereby the Petitioner''s husband Ahamed Kabeer has
been detained under Prevention of Black-marketing and Maintenance of Supply of Essential Commodities Act - Act 7/1980 [for short, ''Pre-
Black Act''].
Facts which led to the detention order are as follows:
On 24.02.2007 at 3 p.m., Inspector of Police Civil Supplies CID Erode, along with police party intercepted a Tata Sumo vehicle which was
driven by the detenu. On searching the vehicle, it was found that 30 bags of PDS rice was being transported. On being interrogated, the detenu
had given a voluntary confession statement, and the rice bags were seized under cover of a Seizure Mahazar. Case was registered in Cr. No.
96/2007 u/s 6(4) of T.N.S.C. (RDCS) Order 1982 r/w 7(1)a(ii) of E.C. Act 1955.
The learned Counsel for the petitioner at the foremost contended that the Arrest Memo is supposed to have been prepared at the time of arrest
i.e. 4.20 p.m. on 24.02.2007, whereas FIR was registered only at 7.00 p.m. on 24.02.2007. While so, there is no explanation as to how crime
number could be given in Arrest Memo, which would vitiate the detention order.
In response, the learned Addl. Public Prosecutor has submitted that the Inspector of Police Civil Supplies CID, Erode was the concerned
Inspector of Police for the Civil Supplies CID Unit, which is a special wing and he could have very well known the next crime number to be
assigned. Since Civil Supplies CID is a Specialized Wing, we find no anomaly in writing crime number in Memo of Arrest, which has preceded the
registration of FIR.
Next ground of challenge raised is that the Detaining Authority formed subjective satisfaction on the basis of extraneous materials. In the grounds
of detention, the Detaining Authority has referred to confession statement which states about the detenu''s involvement in other cases, where he has
been actually detained under Goonda''s Act and the subjective satisfaction based on extraneous materials has the effect of vitiating the detention
order. The learned Addl. Public Prosecutor has drawn our attention to the confession statement in which the detenu has narrated about his
involvement in other cases. By a plain reading of grounds of detention, we find that relevant portion in paragraph 3 of grounds of detention narrate
confession statement. It cannot be said that the Detaining Authority arrived at the subjective satisfaction on the basis of certain statements made in
confession statement so as to verify the correctness of the same.
The learned Counsel for the petitioner submitted that the Central Government is bound to consider report of the State Government as to the
detention order and pass orders thereon and there was delay in consideration of the said report, which has the effect of vitiating the order of
detention. Similar point came up for consideration before Division Bench of Madurai Bench in the decision reported in 2007 (1) MLJ Crl. 1089
Sahul Hameed v. Addl. Secretary to Government of India, Dept. of Consumer Affairs and Ors. In the said decision, observing that passing
appropriate orders by the Central Government is mandatory, the Division Bench held as follows:
Both the State and the Central Governments have got the power to revoke the order of detention. When the State Government is empowered to
consider the representation and could revoke the same, a similar power is also vested in the Central Government for exercising in appropriate
cases. Such power can be exercised not only on a representation made by the detenu, but also on a report received from the State Government.
The only requirement for the Central Government to consider the necessity to pass the order of detention is the knowledge of detention either by a
representation from the detenu or a report from the State Government. Though Sub-section (4) of Section 3 does not indicate specifically as to the
corresponding obligation for the Central Government as contemplated under Sub-section (4) of Section 3 is not an empty formality and cannot be
construed only to keep the record complete, as it has got a definite purpose in terms of the Fundamental Right of the detenu guaranteed under
Articles 21 and 22(5) of the Constitution of India. In this context, the power conferred on the Central Government to consider and revoke the
order of detention u/s 14 shall also be kept in mind. The report of the State Government shall be considered and orders shall be passed by the
Central Government and non-consideration of either the representation made by the detenu or the report received from the State Government
would certainly result in violation of the Fundamental Right guaranteed under Article 22(5) of the Constitution of India and in such event, the order
of detention is vitiated and is liable to be set aside.
The Court has further held that the power of the Central Government to revoke the order of detention must be read with the corresponding duty to
consider and pass orders on the report of the State Government.
The power u/s 14 is a supervisory power. Considering the nature of power of the Central Government u/s 11 of COFEPOSA Act, which is in
pari materia with Section 14 of Pre-Black Act, in Sabir Ahmed Vs. Union of India (UOI), , Supreme Court has held as under:
It is true that Section 3(2) of COFEPOSA mandates the State Government to send a report to the Central Government. But it does not mean
that the representation mad by the detenu, if any, should also be sent along with that report. There appears to be no substance in the contention
that the Central Government is under no duty to consider a representation made to it by the detenu for revoking its detention, if it simply repeats
the same allegations, statement of facts, and arguments which were contained in the representation made to the Detaining Authority. It is common
experience that an argument or submission based on certain facts, which does not appeal to a Tribunal or authority of first instance, may find
acceptance with a higher Tribunal or supervisory authority. Whether or not the detenu has u/s 11 a legal right to make a representation to the
Central Government is not the real question. The nub of the matter is whether the power conferred by Section 11 on the Central Government,
carries with it a duty to consider any representation made by the detenu, expeditiously. The power u/s 11 may either be exercised on information
received by the Central Government from its own sources including that supplied u/s 3 by the State Government, or, from the detenu in the form of
a Petition or representation. Whether or not the Central Government on such Petition/representation revokes the detention is a matter of discretion.
But this discretion is coupled with a duty. That duty is inherent in the very nature of the jurisdiction. The power u/s 11 is a supervisory power. It is
intended to be an additional check or safeguard against the improper exercise of its power of detention by the Detaining Authority or the State
Government. If this statutory safeguard is to retain its meaning and efficacy, the Central Government must discharge its supervisory responsibility
with constant vigilance and watchful care. The report received u/s 3, or any communication or Petition received from the detenu must be
considered with reasonable expedition. What is ''reasonable expedition'' is a question depending on the circumstances of the particular case. No
hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous
inaction, avoidable red-tapism and unduly protracted procrastination.
Coming to the facts of the present case, the State Government has forwarded a report to the Central Government on 10.03.2007 and the said
report was received by the Central Government on 19.03.2007.
Mr. P. Kumaresan, learned Senior Central Government Standing Counsel contended that when there was no representation, the question of
consideration of report sent u/s 3(4) of the Act does not arise. Placing reliance upon Mohd. Dhana Ali Khan Vs. State of West Bengal, , it was
contended that the mere fact that the Central Government had not chosen to revoke or modify the order of detention does not lead to the
conclusion that the Central Government failed to apply its mind. The said decision pertains to the detention order passed under Maintenance of
Internal Security Act. The Supreme Court finding that there was no material to show that the Central Government did not apply its mind at all u/s
14 of the Act, observed that ""It is for the Central Government to revoke or modify the order of detention after the report is submitted to it. The
mere fact that the Central Government does not choose to revoke or modify the order of detention without anything more cannot necessarily lead
to the irresistible inference that the Central Government failed to apply its mind. So far as the State Government is concerned, its duty comes to an
end after it has sent a report regarding the detention order to the Central Government"". In the aforesaid decision, there was no material to show
that the Central Government did not apply its mind.
The learned Senior Counsel for Central Government has produce the letter of the Central Government dated 23.03.2007, under which the
Central Government has called for supporting materials/documents as given in the representation and grounds of detention of the detenu. Apart
from the said letter, nothing seems to have been done further. Reminder appears to have been sent to the State Government on 3.8.2007 calling
upon it to send the supporting materials/documents to enable the Central Government to consider the report.
Drawing attention of the State Government to the observations made by Madurai Bench of this Court in HCP (MDU) No. 255/2006, by
various letters, the Central Government has requested the State Government to ensure that all cases relating to detention under Prevention of
Black-marketing and Maintenance of Supply of Essential Commodities Act - Act 7/1980 are sent to the Central Government along with its English
Version, duly authenticated, without any delay. The Central Government has also noticed that normally there is a delay in sending the supporting
materials and documents. Inspite of such letters, supporting materials/documents do not appear to have been sent to the Central Government.
In our view, the power of the Central Government u/s 14 is public power, coupled with duty to exercise the power in appropriate cases. The
Central Government can invoke the power vested in it u/s 14 not only on a Petition by the detenu but also on receipt of the report about the
detention u/s 3(4) of the Act or in any manner whatsoever. In our view, the power u/s 14 can be exercised only if the Central Government
considers the file. There is nothing to show that the Central Government has dealt with the file except calling for the supporting
documents/materials. In our view, the detention order is liable to be quashed on account of non discharge of public duty by the Central
Government which would vitiate the detention order.
For the foregoing reasons, the detention order is quashed. The detenu is directed to be set at liberty forthwith unless he is required in
connection with any other case.