Judgment · High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.07.2008CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE S.PALANIVELUH.C.P.No.383 of 2008 Navaneetha KrishnanS/o Gurusamy Naicker.. Petitioner-Vs-1. The Secretary to the Government Food, Cooperation and Consumer Protection Department Secretariat Chennai 600 0092. The District Magistrate and District Collector Virudhunagar District Virudhunagar3. The Secretary to the Government Food and Consumer Protection Department Government of India New Delhi 110 001..Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Habeas Corpus, calling for therecords in connection with the order of detention passed by thesecond respondent dated 23.02.2008 in Cr.M.P.No.2/Black Marketeragainst the petitioner's uncle Sankarraj, son of Subba Naicker, aged about 44 years who is confined at Central Prison, Madurai andset aside the same and direct the respondents to produce thedetenu before this Hon'ble Court and set him at liberty.

For Petitioner:: Mr.V.ParthibanFor Respondents:: Mr.M.Babu Muthu Meeran Addl. Public Prosecutorfor R1 & R2Mr.P.Kumaresan, ACGSCfor R3 https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the Court was delivered by D.MURUGESAN, J.)The petitioner is the son-in-law of the detenu by nameSankarraj, S/o Subba Naicker, who has been branded as 'BlackMarketeer' and detained under Section 3(2)(a) read with Section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 7 of1980) in and by the proceedings dated 23.02.2008 passed by thesecond respondent. The said order is under challenge in thispetition. 2. The detention order came to made under the followingcircumstances: (i) On 25.12.2007 at about 5.30 hours, while the SubInspector of Police, CSCID, Virudhunagar and his party as well asthe Special Tahsildar, Flying Squad, Virudhunagar and his teamconducted joint raid in and around Aruppukkottai, they intercepteda Ashok Leyland Lorry bearing Regn.

No.TN 39 Y 8544 near Jeyavilasweigh bridge on Madurai-Tuticorin bye-pass road in Aruppukkotaiand checked and detected 240 bags of PDS boiled rice, eachweighing 50 kgs. The lorry and the rice bags were seized under thecover of mahazar. The lorry driver Thiru.A.Maideen, S/o Aneefawas arrested and he gave a confessional statement in the presenceof witnesses. In the confessional statement, he has stated thatthe detenu had loaded the rice bags with the assistance of loadmenat tank area in Thisayanvilai in Tirunelveli District. A case inCr.No.922 of 2007 under Section 6(4) of TNSC (RDCS) Order, 1982r/w Section 7(1)a(ii) of EC Act, 1955 was registered on the fileof Virudhunagar CSCID police. (ii) On 10.2.2008 at about 16.15 hours, the detenu wasarrested and he also gave a confessional statement in the presenceof witnesses. He was produced before the Judicial Magistrate, Aruppukkottai and remanded to judicial custody upto 22.2.2008 andwas lodged in Central Prison, Madurai.

The said remand wasextended upto 7.3.2008. As the investigation revealed that thedetenu had purchased the boiled rice meant for public distributionsystem from the cardholders and made attempts to smuggle the samefor selling in black market for more pecuniary gain and that hehad acted against the public distribution system, which is aimedto ensure supply of essential commodities at affordable price tothe persons living below poverty line, the detaining authoritynamely, the District Magistrate and District Collector, Virudhunagar was satisfied that in order to curb the anti-socialelements who illegally divert rice meant for public distributionsystem to the open market and that he found the detenu indulgingin such activities prejudicial to the maintenance of supplies ofessential commodities under the public distribution system tofamily cardholders, by the impugned detention order dated23.2.2008, the detenu was detained. https://hcservices.ecourts.gov.in/hcservices/

Mr.V.Parthiban, learned counsel for the petitioner hassubmitted that in the grounds of detention, the detainingauthority has relied upon the confessional statement of Thiru.A.Maideen, lorry driver, implicating the detenu and in orderto make an effective representation, he had requested to furnish acopy of the said confessional statement on 11.3.2008, but the samewas served only on 2.4.2008 i.e., after the Advisory Board had meton 28.3.2008. By virtue of the above, the right of the detenu tomake an effective representation was deprived of. In thiscontext, he would rely upon the judgment of this Court in Dhanushu@ Vijay S/o Chandran Subbiah and others v. State of Tamil Nadurep.by the Secretary to the Government, Prohibition and ExciseDepartment and others (2007) 2 MLJ (Crl) 1467. He would alsosubmit that in paragraph-9 of the English version of the groundsof detention, it is stated as follows:-"He is further informed that he has a right tomake representation to The Chairman, Advisory Board, Madras High Court Complex, Chennai through the Superintendent of Central Prison, Madurai.

We have heard Mr.M.Babu Muthu Meeran, learned AdditionalPublic Prosecutor for the respondents also.

So far as the first contention relating to the nonfurnishing of the confessional statement of the lorry driver isconcerned, we are of the considered view that the detention orderwas not passed solely on the basis of the confessional statementof Thiru.A.Maideen, the driver of the lorry. In page 28 of thebooklet, the statement of one P.Murugesh is enclosed. In page 30,the statement of one Basheer Ahmed is enclosed and in page 31, thestatement of one Madurai Veeran is enclosed. In all thesestatements, the involvement of the detenu in smuggling activitieshave been spoken. The detaining authority had considered theentire materials and arrived at the satisfaction that the detenuindulged in activities prejudicial to the maintenance of suppliesof essential commodities under the public distribution system tofamily cardholders. Therefore, the detaining authority has onlyreferred the fact that the confessional statement of the lorrydriver was also obtained. In our considered view, the failure onthe part of the detaining authority to supply the saidconfessional statement along with the grounds of detention to thedetenu would not vitiate the order of detention. It appears thatthe detenu had made a request for supply of the said document on11.3.2008 and the same was supplied on 2.4.2008, of course, afterthe Advisory Board had met. The judgment in Dhanushu @ Vijay'scase reported in (2007) 2 MLJ (Crl) 1467 (supra) relied upon bythe learned counsel for the petitioner relates to a case of reliedupon document and only under the said circumstances, the DivisionBench of this Court came to the conclusion that when anotification was heavily relied upon by the detaining authority, the detaining authority had failed to supply the same despite therequest made in the representation and such notification wassupplied only on 2.4.2007, by which date the Advisory Board hadalready met and on the said ground, the detention order wasquashed. In our considered view, the said judgment is notapplicable to the facts of the present case, as the confessionalstatement is not the only document which was relied upon by thedetaining authority as contended by the learned counsel for thepetitioner and while considering the grounds of detention, thedetaining authority has merely referred to the confessionalstatement and therefore we reject the first contention of thelearned counsel for the petitioner.

So far as the contention relating to the failure infurnishing the correct vernacular translation of paragraph-9 ofthe grounds of detention is concerned, the relevant provisions canbe usefully referred to. Section 10 of the Prevention of Blackmarketing and Maintenance of Supplies of EssentialCommodities Act, 1980 reads as under:-"10. Reference to Advisory Boards.--Save asotherwise expressly provided in this Act, in everycase where a detention order has been made underthis Act, the appropriate Government shall, within https://hcservices.ecourts.gov.in/hcservices/ three weeks from the date of detention of a personunder the order, place before the Advisory Boardconstituted by it under section 9, the grounds onwhich the order has been made and therepresentation, if any, made by the person affectedby the order, and in case where the order has beenmade by an officer referred to in sub-section (2)of section 3, also the report by such officer undersub-section (3) of that section. "From the said section, it is clear that in every case wherea detention order has been made under this Act, the appropriateGovernment shall, within three weeks from the date of detention ofa person under the order, place before the Advisory Boardconstituted by it under section 9, the grounds on which the orderhas been made and the representation, if any, made by the personaffected by the order. The appropriate Government is mandated toplace only the grounds of detention as well as the representation, if any, received before the Advisory Board. (emphasis supplied).

On the facts of this case, first of all, we do not findany discrepancy in the translation. Though in the English versionit is specifically stated that the representation as well as thecase details would be placed before the Advisory Board under Section 10 of the Act, in the Tamil version it is stated that therepresentation would be placed before the Advisory Board. Thetranslated copy of Tamil version would further say that inaddition to the above, the representation will be placed in termsof Section 10 of the Act, necessarily meaning thereby the recordswhich are bound to be placed before the Advisory Board under Section 10 relating to the grounds of detention. In fact thelearned Additional Public Prosecutor has produced the filespertaining to the proceedings of the Advisory Board. By orderdated 28.3.2008, the Advisory Board has found that there issufficient cause for the detention of the detenu and such decisionwas arrived at only after perusing the entire records. When theentire records relating to the detention order including thegrounds of detention and the representation received from thedetenu were placed before the Advisory Board, in our consideredview, the translation of paragraph-9 of the grounds of detentionin Tamil does not vary and there is no discrepancy.

The right to make an effective representation is anintegral part of the fundamental right and such a right is not amere formality. However, the detenu could complain of hisinability to make such a representation only within the parametersof the provisions of Section 10 and not beyond that. In ourconsidered view, when the provisions of Section 10 have beencomplied with by the appropriate Government in placing all thematters before the Advisory Board, the contention that the detenuwas prevented from making an effective representation isunacceptable. https://hcservices.ecourts.gov.in/hcservices/

For the foregoing reasons, there are no merits in both thecontentions raised by the learned counsel for the petitioner. Accordingly, the habeas corpus petition fails and it is dismissed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssTo1. The Secretary to Government of Tamil Nadu Food, Cooperation and Consumer Protection Department Chennai 600 0092. The District Magistrate and District Collector Virudhunagar District Virudhunagar3. The Secretary to the Government Food and Consumer Protection Department Government of India New Delhi 110 001 4. The Public Prosecutor High Court, Madras5. The Superintendent Central Prison, Madurai. H.C.P.No.383 of 2008KSK (CO)kk 22/7