Shahul hameed v. The Secretary to the Government, Food, Co-operation and Consumer Protection Department

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.06.2008 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE S.PALANIVELUH.C.P.NO.204 OF 2008Shahul hameed.. PetitionerVs.1.The Secretary to the Government, Food, Co-operation and Consumer Protection Department, Chennai-600 009.2.The District Magistrate and District Collector, Karur District, Karur.3.The Addl. Secretary to the Government of India, Department of Consumer Affairs, 270,Krish Bhavan, New Delhi-110 001.. Respondents This habeas corpus petition has been preferred underArticle 226 of the Constitution of India praying for theissue of a writ of habeas corpus to call for the records inconnection with the detention order, dated 05.02.2008 indetention order No.01/2008/CS against the petitioner'sbrother-in-law Abuthahir, son of Abdul mazid, aged about 48years, who is confined as Central Prison, Trichy and setaside the same and to direct the respondents to produce thedetenu before the court and set him at liberty. For Petitioner : Mr.V.ParthibanFor Respondents: Mr.Babu Muthu Meeran, APP for RR1 and 2 Mr.P.Kumaresan, ACGSC for R3 https://hcservices.ecourts.gov.in/hcservices/ ORDER(The order of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to an order of the secondrespondent, dated 05.02.2008 in Detention Order No.01/2008(CS) against one Abuthahir, terming him as Black Marketeerand detaining him under the provisions of Prevention ofBlack Marketing and Maintenance of Supplies of EssentialCommodities Act, 1980 (Act No.7 of 1980).2.The affidavit filed in support of the petition andthe counter affidavit also are perused. The court heard thelearned counsel on either side. 3.On the strength of 4 adverse cases, namely CrimeNo.205/05 registered by CSCID, Madurai, Crime Nos.255/05and 475/05 registered by CSCID, Krishnagiri and CrimeNo.825/05 registered by CSCID, Salem under Section 6(4)TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of EC Act, 1955 andalso a ground case registered in Crime No.92 of 2008, wherethe incident took place on 1.2.2008, the DetainingAuthority, the second respondent herein, after looking intothe materials available pertaining to those cases and theother materials, was of the opinion that the detenu hasindulged in activities, which were prejudicial to themaintenance of Supplies of Essential Commodities under thepublic distribution system and hence he was to be brandedas Black Marketeer and further, in order to prevent himfrom indulging in such activities in future, it has becomenecessary to pass an order of detention and accordingly,the Detaining Authority has passed the order of detention,which is the subject matter of challenge before this court.4.Advancing arguments in support of the petition, thelearned counsel, inter-alia, would submit that the ordercame to be passed on 05.02.2008, branding the detenu asBlack Marketeer; that a representation was made on7.2.2008; that the same was received by the DetainingAuthority on 12.02.2008; that the order of detention wasapproved by the State on 15.02.2008, but the representationmade to the Detaining Authority was never considered; thatthere was violation of vital particulars as to through whomthe representation to the Central Government was to bemade; that it is not in controversy that during therelevant period, the detenu was actually kept in custody atCentral Prison, Trichy; that further in English version ofthe grounds of detention, it was found that "if the detenuwishes to make any representation to the State Government,it should be made through the Superintendent, CentralPrison, Madurai, while in the Tamil version, it has beenfound as Trichy and thus, it was rather misleading and https://hcservices.ecourts.gov.in/hcservices/ therefore, the purpose for which the translated version wasserved upon, was defeated. 5.Added further the learned counsel that there wasrepresentation made to the Central Government and it wasnot at all considered till this time; that while therepresentation was made on 07.02.2008, the letter ofrejection was served upon the detenu only on 8.3.2008 andthus, there was a huge delay, which remained unexplainedand therefore, for all these grounds, the order ofdetention has got to be set aside. 6.The court heard the learned counsel for therespondents on the above contentions and has paid itsanxious consideration on the submissions made.7.It is not in controversy that the order underchallenge was passed by the Detaining Authority, brandinghim as Black Marketeer, since in the opinion of theDetaining Authority, as could be noticed from the casesregistered against him and also the materials available,the activities of the detenu were prejudicial to themaintenance of Supplies of Essential Commodities under thePublic Distribution System and also in order to prevent himfrom doing so in future, a necessity arose to detain himunder the provisions of Prevention of Black Marketing anMaintenance of Supplies of Essential Commodities Act, 1980(Act No.7 of 1980). 8.Now, all the materials placed before the court arelooked into. Concededly, the order under challenge came tobe passed on 05.02.2008 and a representation was made on07.02.2008, which was received by the Detaining Authorityon 12.02.2008 and the approval was made on 15.02.2008. Atthis juncture, it is pertinent to point out that thereceipt of the said representation is not denied. Nowhereany material is indicative of the fact that the saidrepresentation placed before the Detaining Authority wasever considered, but approval was made by the StateGovernment on 15.02.2008 and thus, from this point of view,it could be well seen that the order has become infirm. Sofar as the delay is concerned, this court is unable to seeany delay in considering the representation made and theservice of rejection letter. Further, as rightly pointedout by the learned counsel for the petitioner, it is foundin the grounds of detention in English version that if hewishes to make any representation to the State Government,he should address it to The Secretary to Government, Co-operation, Food and Consumer Protection Department,Secretariat, Chennai-600 009 through the Superintendent,Central Prison, Madurai, in which he is detained asexpeditiously as possible. But, when the Tamil version islooked into, it is found as follows: https://hcservices.ecourts.gov.in/hcservices/ "nkYk; jLg;g[f; fhtypy; itj;Jgpwg;gpf;fg;gl;Ls;s Mizia vjph;j;J jkpHf muRf;Fk;.vGj;J K:yk; KiwaPL bra;J bfhs;s mtUf;F chpika[z;L vdt[k; bjhptpf;fg;gLfpwhh;/ mth; mt;thW KiwaPLbra;J bfhs;s tpUk;gpdhy;. mjid mth; ,ad;w tiuapy;tpiuthf "muR brayh;. JkpH;ehL muR Tl;Lwt[. czt[ kw;Wk; Efh;nthh; ghJfhg;g[ Jiw. Jiyikr; brayfk;.brd;id 600 009" vd;w Kfthpf;F jLg;g[f; fhtypy;itf;fg;gl;Ls;s jpUr;rp kj;jpa rpiw fz;fhzpg;ghsh;K:ykhf mDg;gp itf;f ntz;Lk;"The translation of Tamil version was given in order to makehim understand and to enable him to give representationthrough the Secretary to the Government through properchannel. But, it is found to be different in the Englishand Tamil versions. Thus, it is not only creatingconfusion, but also misleading him. The purpose for whichTamil translated version has been given was to enable himto make representation through proper channel, but in theinstant case, the purpose for which the Tamil translatedversion has been given was actually defeated and therefore,it has caused prejudice to the detenu. 9.So far as the non consideration of therepresentation by the Central Government till this time wasconcerned, the reply by the learned Additional CentralGovernment Standing Counsel is that no such representationwas made. In the absence of any material to show that anyrepresentation was received by the Central Government, noquestion of accepting such contention would arise and hencethat contention cannot be countenanced. 10.Therefore, for the other two reasons, as referredto above, this Court is of the considered opinion that theorder of detention has got to be quashed. Accordingly, thedetention order is set aside. The Habeas Corpus Petition isallowed. The detenu is directed to be set at libertyforthwith unless his presence is required in connectionwith any other case.Sd/Asst. Registrar/true copy/Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ vvkTo1.The Secretary to the Government, Food, Co-operation and Consumer Protection Department, Chennai-600 009.2.The District Magistrate and District Collector, Karur District, Karur.3.The Addl. Secretary to the Government of India, Department of Consumer Affairs, 270,Krish Bhavan, New Delhi-110 001.4.The Superintendent, Central prison, Trichy5.The Joint Secretary to Government, Public (Law and Order)Fort St. George, Chennai-96.The Public Prosecutor, High Court, Madras-104.+1 cc to Mr.C. Prakasam,, Advocate, SR.No.33679H.C.P.NO.204 OF 2008ksk(co)pmk/10.7.08.