AI Structured Summary
Not yet generated for this judgment
Judgment
P.P.S. Janarthana Raja, J.—The Petitioner is the wife of the detenu-Harikrishnan. The Petitioner has come forward with this Habeas Corpus
Petition seeking for the relief of quashing the Detention Order No. 01/PBMMSEC/2011 dated 20.06.2011 passed by the third Respondent,
slapped on her husband detaining him as a ?Black Marketeer? as contemplated under the provisions of the Prevention of Blackmarketing and
Maintenance of Supplies of Essential Commodities Act, 1980 (?Act? in short).
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. He further submitted that the detenu has made representation to all the Respondents, but the same
was not considered by all 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. The counsel further submitted that the second Respondent-
Government of Tamil Nadu, has considered the representation of the detenu and confirmed the order of the third Respondent. Therefore, the order
of detention passed by the third Respondent is in accordance with law and hence the same has to be confirmed. 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 on either side and perused the materials available on record. 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.
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 Section 3(4) of the Act, it is clear that when an 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. In the present case, the State
Government has already approved the order passed by the third Respondent. However, the learned Central Government Standing Counsel
appearing for the first Respondent has produced a letter received from the Government of India, Department of Consumer Affairs, New Delhi
dated 02.08.2011, which reads as follows:
Subject-Factual position in respect of H.C.P.(MD) No.
513 of 2011 filed by Smt. H. Nithya in respect of Shri Hari @ Hariharan, a PBM Act detainee.
Sir,
I am directed to refer to your letter dated 12th July, 2011 forwarding therewith a copy of H.C.P.(MD) No. 513 of 2011 filed by Smt. H. Nithya
in respect of Shri Hari @ Hariharan, a PBM Act detainee and to say that the Central Government had called for the English version of the
detention order, grounds of detention, approval of State Government and supporting documents vide telegram of even number dated 20th July
2011 (copy enclosed). The same are still awaited from the State Government.
As per the available record, No. representation on behalf of detainee has either been received from the State Government or any other source
so far.
From a reading of the above, it is clear that the Central Government, the above mentioned first Respondent, has not received any order with all the
records as contemplated u/s 3(4) of the Act, from the State Government. Therefore, there is violation of Section 3(4) of the Act. The scope of
Section 3(4) of the Act was considered by a Division Bench of this Court 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 Blackmarketing 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 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 27.06.2011 to the Respondents 1 to 3, and therefore,
they ought to have considered the above representation as per the above judgment of the Supreme Court. Failure on the part of the Respondents 1
to 3 in considering the representation of the detenu 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 Dale case: (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 01/PBM
MSEC/2011 dated 20.06.2011 is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any
other case.