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Judgment
The Honourable Mr. Justice P.P.S. Janarthana Raja, J.—Petitioner is the wife of the detenu-Muthuramalingam. The Petitioner has come
forward with this Habeas Corpus Petition seeking for the relief of quashing the Detention Order No. 02/PBMMSEC/2011 dated 08.07.2011
passed by the second 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), on the ground that the detenu-
Muthuramalingam has been engaged in the smuggling of Public Distribution System rice meant for public distribution system, which is an essential
commodity as defined in Essential Commodities Act, 1955 and that it was being smuggled for sale at higher prices in Black Market with a view to
make gain; that the activities of the detenu is prejudicial to the maintenance of supplies of commodities essential to the community; his activities
might endanger social security and stability and also pose an imminent threat to social order; that the normal criminal law will not have the desired
effect of effectively preventing him from indulging in such activities against Prevention of Black Marketing and Maintenance of Supplies of Essential
Commodities Act, 1980, which are prejudicial to the maintenance of supplies of commodities essential to the community in future.
Learned Counsel for the Petitioner vehemently contended that the detention order passed by the second 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 the Respondents 1 to 3, but the
same was not considered by the first and third Respondents 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, according to the Learned Counsel for the Petitioner, the order of detention passed by the
second Respondent has to be set aside.
Learned Additional Public Prosecutor appearing on behalf of the Respondents 1, 2 and 4 has 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 second Respondent is in accordance with law and hence the same has to be confirmed. Learned Central Government Standing
Counsel appearing for the third 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. After passing the detention order, the State government ought to
have sent the detention order along with the relevant papers to the Central Government. In the present 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 can not 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 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. 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 03.08.2011 wherein
we have 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.
In the present case, it is also seen that the detenu had sent a representation dated 10.07.2011 to the Respondents 1 and 3 and another
representation dated 09.07.2011 to the second Respondent/detaining authority. The second Respondent has considered the representation and
rejected it, and there is no dispute regarding the same. In respect of the representation made to the first and third Respondents, both the authorities
have not considered the representation. Learned Central Government Standing Counsel appearing for the third Respondent has fairly stated that
the third Respondent-Central Government has not considered the representation of the detenu. Further, the learned Additional Public Prosecutor
also stated that the first Respondent-State Government has not considered the representation of the detenu. 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 third 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. Failure on the part of the third respondent-Central Government 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 and 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 second Respondent in his Proceedings
02/PBMMSEC/2011 dated 08.07.2011 is set aside. The detenu is directed to be released forthwith unless his presence is required in connection
with any other case.