AI Structured Summary
Not yet generated for this judgment
Judgment
Honourable Mr. Justice K.N. Basha, J.—The petitioner, who is the mother of the detenu viz., Senthamaraikannan, has come forward with
this petition challenging the order of detention dated 27.04.2012 passed by the second respondent, slapped on her son, branding him as ''Black
Marketeer'' under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. Mr.V.Paarthiban,
learned counsel appearing for the petitioner, though raised several other grounds, mainly contended that the detenu''s mother preferred a
representation dated 14.05.2012 to the third respondent, namely, Secretary to the Government, Ministry of Consumer Affairs, Food and Public
Distribution (Department of Consumer Affairs), New Delhi, but the same was stated to have been rejected through a telegraphic communication
and the rejection order was not served. It is contended that even the said telegram reveals that the same was sent by one T.TOPPO for Under
Secretary to the Government of India, Department of Consumer Affairs, Krishi Bhawan, New Delhi and as such, it is very clear that the report
was not considered by the third respondent and the same ought to have been considered only by the Under Secretary, which is in violation of
statutory obligation conferred on the Secretary. It is further contended that the detenu has the Fundamental Right under Article 22(5) of the
Constitution of India for making a representation challenging the detention order, but the said right was infringed by the careless attitude of the third
respondent herein as he has not even considered the representation and on the other hand, a telegraphic communication was sent to the effect of
informing that his representation was rejected through an officer for the Under Secretary. It is pointed out by the learned counsel for the petitioner
that a Division Bench of the Kerala High Court, in Lekha Nandakumar Vs. Government of India, held that sending mere communication is not
sufficient and it is incumbent on the authorities to send the rejection order to the detenu and as such, it was held that the detention order will not
stand as there is procedural violation. The learned counsel for the petitioner also pointed out that by placing reliance on the said decision, similar
view was taken by a Division Bench of this Court in a unreported decision in H.C.P.No.329/2009 by the order dated 08.07.2009 [P.Sekaran v.
The Secretary to Govt. Coopertion, Food and Consumer Protection Department, Secretariat, Chennai 600009 and Others].
Heard, Mr.V.Kadhirvelu, learned Central Government Standing Counsel for the third respondent on the submissions made by the learned
counsel for the petitioner. It is contended that only after careful consideration of the representation by the Central Government, the rejection order
was passed and the same was intimated to the detenu through the telegram. It is submitted, on instructions, that only telegraphic communication
was sent and the rejection order was not sent.
Mr.K.P.Ananthakrishna, learned Additional Public Prosecutor appearing for the State Government submitted that there is no lapse on their part.
We have given our careful and anxious consideration to the rival contentions put forward by either side and perused the entire materials available
on record including the impugned detention order and its grounds.
At the outset, it is to be stated that a representation dated 14.05.2012 was sent by the detenu through his mother to the third respondent,
namely, Secretary to the Government, Ministry of Consumer Affairs, Food and Public Distribution (Department of Consumer Affairs), New Delhi,
but the fact remains that the authorities have sent only a telegraphic communication dated 03.07.2012 intimating their inability to accede to the
request to revoke the order of detention on the basis of the representation dated 14.05.2012. The perusal of the said communication dated
03.07.2012 reveals that the same was addressed to the Superintendent, Central Prison, Cuddalore and the said intimation was served on the
detenu. It is relevant to extract the contents of the said telegraphic communication dated 03.07.2012 as hereunder:
REF:REPRESENTATION IN FAVOUR OF SHRI SENTHAMARAIKANNAN, S/O. SHRI ANBAZHAGAN DETAINED UNDER
PREVENTION OF BLACK MARKETING AND MAINTENANCE OF SUPPLIES OF ESSENTIAL COMMODITIES ACT, 1980 FOR
REVOCATION OF HIS DETENTION ORDERS (.) CENTRAL GOVERNMENT HAS CAREFULLY EXAMINED THE
REPRESENTATION DATED 14.5.2012 AND EXPRESS ITS INABILITY TO ACCEDE TO THE REQUEST TO REVOKE ORDER OF
HIS DETENTION BY EXERCISING ITS DISCRETION u/s 14 OF THE SAID ACT AS THERE DO NOT APPEAR TO BE VALID
SUFFICIENT GROUNDS FOR CENTRAL GOVERNMENT''S INTERVENTION (.) INFORM DETAINEE ABOUT REJECTION OF
THE REPRESENTATION BY THE CENTRAL GOVERNMENT (.) CONFIRM THE FACT OF CONVEYING THE INFORMATION
TO THE DETAINEE (.)
POORTISAHKAR
......
(T.TOPPO)
FOR UNDER SECRETARY TO THE GOVERNMENT OF INDIA
DEPARTMENT OF CONSUMER AFFAIRS
KRISHI BHAWAN, NEW DELHI
.......
F.NO.3(82)/2012-ECR&E
BY SPEED POST
DATED 03.07.2012
A perusal of the above said communication reveals that there is absolutely no indication to the effect that the third respondent Secretary examined
or considered the representation dated 14.05.2012. It is merely stated that the Central Government has considered the representation dated
14.05.2012. The said communication further reveals that the telegraphic communication was sent by one T.TOPPO on behalf of the Under
Secretary to the Government of India, Department of Consumer Affairs, Krishi Bhawan, New Delhi. Therefore, it is crystal clear that the
telegraphic intimation reveals that the representation was dealt with only by the Under Secretary who has no authority or jurisdiction to consider
the representation. The said factors reveals the casual and callous manner of considering the representation of the detenu.
It is needless to say that it is the statutory obligation of the Secretary, who has been impleaded as the third respondent herein, to consider the
representation of the detenu by applying its mind, but the said statutory obligation, from the reading of the telegraphic communication, was not at all
complied with by the Secretary. On the other hand, as it is already pointed out, the telegraphic communication discloses that the representation
could have been dealt with only by the Under Secretary to the Government of India, Department of Consumer Affairs, New Delhi.
The learned counsel for the petitioner also rightly placed reliance on the decision rendered by a Division Bench of the Kerala High Court in
Lekha Nandakumar Vs. Government of India, , in respect of an identical issue. The Division Bench of the Kerala High Court in the said decision
has held as hereunder:
5.Ext. P-5 representation was made to the Central Government and it was addressed to the Secretary to Government of India as directed in the
detention order. It is a very detailed representation. That was also rejected and it was informed by Ext.P-6, dated 28-5-2004, despatched on 31-
5-2004, as follows:
With reference to the representation dated 4-5-2004 made by Shri. B. Nandakumar, a COFEPOSA detenu, he is hereby informed that the
aforesaid representation has been carefully considered by the Joint Secretary, Central Economic Intelligence Bureau, Deptt. Of Revenue, Ministry
of Finance, New Delhi being the Detaining Authority but it is regretted that the same has been rejected.
Sd/-
(N.RAJAGOPALAN)
UNDER SECRETARY TO THE
GOVERNMENT OF INDIA
This shows that the representation addressed to the Secretary was considered only by the Joint Secretary, that the representation was disposed of
after more than three weeks and was not disposed of applying mind by the competent authority. Delay of 16 years was held to be unexplained by
the Apex Court in Pabitra N. Rana Vs. Union of India (UOI) and Others, and in Prof. Khaidem Ibocha Singh, etc. Vs. The State of Manipur, It is
pointed out by the learned Central Government Standing Counsel that another communication was also sent to him on 31-5-2003 by the Under
Secretary informing that Secretary has disposed of the representation. The learned Senior Standing Counsel was also handed over the file. It
shows that on receipt of the representation the Under Secretary has prepared a note. Behind the note, the Secretary has made an endorsement as
follows:
I have gone through the representation and all relevant papers. The representation does not merit acceptance.
Even though various contentions including non-supply of necessary documents etc. were mentioned in the representation, there is no application of
mind by the Secretary to Government. The Secretary has just rejected the representation. It does not show that he has applied his mind. When the
authority disposes a representation, which is a constitutional right of the detenu, it cannot be disposed of like this in a casual manner. Further, the
Secretary has not communicated his order to the detenu, but only the Under Secretary has communicated the order. It is true that even though
making of representation is a constitutional right, there is no obligation for the Central Government to grant a hearing. It is also not necessary that
an elaborate speaking order should be passed. But from the order it should appear that the authority has applied its mind while disposing of the
representation. The order should be sent to the detenu. Here the order passed by the Secretary was not sent to the detenu, but only the factum of
rejection of his representation was intimated by the Under Secretary keeping the detenu in dark regarding the way in which his representation was
disposed of. There is nothing on record to show that the concerned authority has applied its mind. Even if the Under Secretary informed him that
Secretary has disposed of his representation, this is not the way a constitutional obligation is to be discharged by the Government Secretary.
Therefore, there is no proper disposal of the representation. We are of the view that on this ground alone the detention order will not stand as there
is procedural violation.
The principle laid down by the Division Bench of the Kerala High Court in the decision cited supra is squarely applicable to the case on hand. It is
pertinent to note that in the said decision cited supra, in the intimation, the Under Secretary informed that the Secretary has disposed of his
representation, but even then the Division Bench of the Kerala High Court held that that is not the way a constitutional obligation is to be
discharged by the Government Secretary. But in the case on hand, even such averment is absent in the telegraphic communication as it is not stated
in the telegraphic communication that the Secretary has dealt with the representation and disposed of the same and on the other hand, a vague
statement made to the effect that the Central Government has considered the representation, more particularly, an intimation was sent from a lower
level officer on behalf of the Under Secretary, which makes it crystal clear that only the Under Secretary, on behalf of the Central Government,
would have dealt with the representation and not the Secretary, namely, the third respondent. Therefore, we have no hesitation to hold that the
authority, which is not competent to deal with the representation, has considered and rejected and sent only a telegraphic intimation and the
rejection order was not at all served to the detenu even as per the submission of the learned Central Government Standing Counsel.
This is a classic case wherein the Fundamental Right guaranteed to the detenu under Article 22(5) of the Constitution of India has been infringed
by considering the representation of the detenu in a most casual and callous manner and that too by an incompetent authority, namely, Under
Secretary to the Central Government. In view of all these factors, we have no hesitation to hold that the impugned detention order is vitiated not
only on the ground of consideration of the representation of the detenu by a incompetent authority but also on the ground of non-application of
mind by the competent authority viz., The Secretary to Government, Ministry of Consumer Affairs, Food and Public Distribution (Department of
Consumer Affairs), New Delhi, the third respondent herein.
At this juncture, it is also relevant to mention that the view taken by the Division Bench of the Kerala High Court in the decision cited supra was
accepted and agreed by taking a similar view by a Division Bench of this Court in an unreported decision in H.C.P.No.329/2009 by the order
dated 08.07.2009 [P.Sekaran v. The Secretary to Govt. Coopertion, Food and Consumer Protection Department, Secretariat, Chennai 600009
and Others]. For the aforesaid reasons, the impugned detention order is unsustainable in law. Accordingly, this Habeas Corpus Petition is allowed
and the detention order passed by the second respondent dated 27.04.2012 in No.C3/D.O/9/2012 is hereby set aside. The detenue viz.,
Senthamaraikannan, Son of Anbazhagan, aged about 30 years, who is confined at Central Prison, Cuddalore is directed to be set at liberty
forthwith unless he is required in connection with any other case.