Tmt. A. Ramani v. The Secretary to Government, Cooperation, Food and Consumer Protection Department & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 03.08.2012CORAMTHE HONOURABLE MR . JUSTICE K.N.BASHAANDTHE HONOURABLE MR. JUSTICE P.DEVADASSH.C.P.No.1147 of 2012Tmt.A.Ramani ..Petitioner / mother of the detenueVersus1.The Secretary to Government, Cooperation, Food and Consumer Protection Department, 2nd Floor, Namakkal Kavignar Maligai Secretariat, Chennai 600 009.2.The District Collector and The District Magistrate, Cuddalore District, Cuddalore. 3.The Secretary to Government, Ministry of Consumer Affairs, Food and Public Distribution, (Department of Consumer Affairs) Room No.270, Krish Bhavan, New Delhi-110 001 ..RespondentsPrayer:- Habeas Corpus Petition filed under Article 226 of theConstitution of India praying for a Writ of Habeas Corpus to call forthe records in connection with the order of detention passed by thesecond respondent dated 27.04.2012 in C3/D.O/9/2012 against thepetitioner's son Senthamaraikannan, Son of Anbazhagan, aged about 30years, who is confined at Central Prison, Cuddalore and set aside thesame and direct the respondents to produce the detenu before thisHon'ble Court and set him at liberty. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner :M/s.V.PaarthibanFor Respondents:Mr.K.P.Ananthakrishna Additional Public Prosecutor for R1 and R2 Mr.V.Kadhirvelu, CGSC for R3O R D E R(Order of the Court was made by K.N.BASHA, J.)The petitioner, who is the mother of the detenu viz.,Senthamaraikannan, has come forward with this petition challengingthe order of detention dated 27.04.2012 passed by the secondrespondent, slapped on her son, branding him as 'Black Marketeer'under the Prevention of Black Marketing and Maintenance of Suppliesof Essential Commodities Act, 1980. 2. Mr.V.Paarthiban, learned counsel appearing for the petitioner,though raised several other grounds, mainly contended that thedetenu's mother preferred a representation dated 14.05.2012 to thethird respondent, namely, Secretary to the Government, Ministry ofConsumer Affairs, Food and Public Distribution (Department ofConsumer Affairs), New Delhi, but the same was stated to have beenrejected through a telegraphic communication and the rejection orderwas not served. It is contended that even the said telegram revealsthat the same was sent by one T.TOPPO for Under Secretary to theGovernment of India, Department of Consumer Affairs, Krishi Bhawan,New Delhi and as such, it is very clear that the report was notconsidered by the third respondent and the same ought to have beenconsidered only by the Under Secretary, which is in violation ofstatutory obligation conferred on the Secretary. It is furthercontended that the detenu has the Fundamental Right under Article 22(5) of the Constitution of India for making a representationchallenging the detention order, but the said right was infringed bythe careless attitude of the third respondent herein as he has noteven considered the representation and on the other hand, atelegraphic communication was sent to the effect of informing thathis representation was rejected through an officer for the UnderSecretary. It is pointed out by the learned counsel for thepetitioner that a Division Bench of the Kerala High Court, inMrs.Lekha Nandakumar v. Joint Secretary to Govt. of India, Ministryof Finance and Others reported in 2004 CRI.L.J. 3797, held thatsending mere communication is not sufficient and it is incumbent onthe authorities to send the rejection order to the detenu and assuch, it was held that the detention order will not stand as there isprocedural violation. The learned counsel for the petitioner also https://hcservices.ecourts.gov.in/hcservices/ pointed out that by placing reliance on the said decision, similarview was taken by a Division Bench of this Court in a unreporteddecision in H.C.P.No.329/2009 by the order dated 08.07.2009[P.Sekaran v. The Secretary to Govt. Coopertion, Food and ConsumerProtection Department, Secretariat, Chennai 600009 and Others]. 3. Heard, Mr.V.Kadhirvelu, learned Central Government StandingCounsel for the third respondent on the submissions made by thelearned counsel for the petitioner. It is contended that only aftercareful consideration of the representation by the CentralGovernment, the rejection order was passed and the same was intimatedto the detenu through the telegram. It is submitted, oninstructions, that only telegraphic communication was sent and therejection order was not sent. 4. Mr.K.P.Ananthakrishna, learned Additional Public Prosecutorappearing for the State Government submitted that there is no lapseon their part. 5. We have given our careful and anxious consideration to therival contentions put forward by either side and perused the entirematerials available on record including the impugned detention orderand its grounds.6. At the outset, it is to be stated that a representation dated14.05.2012 was sent by the detenu through his mother to the thirdrespondent, namely, Secretary to the Government, Ministry of ConsumerAffairs, Food and Public Distribution (Department of ConsumerAffairs), New Delhi, but the fact remains that the authorities havesent only a telegraphic communication dated 03.07.2012 intimatingtheir inability to accede to the request to revoke the order ofdetention on the basis of the representation dated 14.05.2012. Theperusal of the said communication dated 03.07.2012 reveals that thesame was addressed to the Superintendent, Central Prison, Cuddaloreand the said intimation was served on the detenu. It is relevant toextract the contents of the said telegraphic communication dated03.07.2012 as hereunder:“REF:REPRESENTATION IN FAVOUR OF SHRISENTHAMARAIKANNAN, S/O. SHRI ANBAZHAGAN DETAINED UNDERPREVENTION OF BLACK MARKETING AND MAINTENANCE OF SUPPLIES OFESSENTIAL COMMODITIES ACT, 1980 FOR REVOCATION OF HISDETENTION ORDERS (.) CENTRAL GOVERNMENT HAS CAREFULLYEXAMINED THE REPRESENTATION DATED 14.5.2012 AND EXPRESS ITSINABILITY TO ACCEDE TO THE REQUEST TO REVOKE ORDER OF HISDETENTION BY EXERCISING ITS DISCRETION UNDER SECTION 14 OFTHE SAID ACT AS THERE DO NOT APPEAR TO BE VALID SUFFICIENTGROUNDS FOR CENTRAL GOVERNMENT'S INTERVENTION (.) INFORMDETAINEE ABOUT REJECTION OF THE REPRESENTATION BY THECENTRAL GOVERNMENT (.) CONFIRM THE FACT OF CONVEYING THE https://hcservices.ecourts.gov.in/hcservices/ INFORMATION TO THE DETAINEE (.)POORTISAHKAR….................................................................................(T.TOPPO)FOR UNDER SECRETARY TO THE GOVERNMENT OF INDIADEPARTMENT OF CONSUMER AFFAIRSKRISHI BHAWAN, NEW DELHI….................................................................................F.NO.3(82)/2012-ECR&EBY SPEED POSTDATED 03.07.2012A perusal of the above said communication reveals that there isabsolutely no indication to the effect that the third respondentSecretary examined or considered the representation dated 14.05.2012.It is merely stated that the Central Government has considered therepresentation dated 14.05.2012. The said communication furtherreveals that the telegraphic communication was sent by one T.TOPPO onbehalf of the Under Secretary to the Government of India, Departmentof Consumer Affairs, Krishi Bhawan, New Delhi. Therefore, it iscrystal clear that the telegraphic intimation reveals that therepresentation was dealt with only by the Under Secretary who has noauthority or jurisdiction to consider the representation. The saidfactors reveals the casual and callous manner of considering therepresentation of the detenu. 7. It is needless to say that it is the statutory obligation ofthe 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 thetelegraphic communication, was not at all complied with by theSecretary. On the other hand, as it is already pointed out, thetelegraphic communication discloses that the representation couldhave been dealt with only by the Under Secretary to the Government ofIndia, Department of Consumer Affairs, New Delhi. 8. The learned counsel for the petitioner also rightly placedreliance on the decision rendered by a Division Bench of the KeralaHigh Court in Mrs.Lekha Nandakumar v. Joint Secretary to Govt. ofIndia, Ministry of Finance and Others reported in 2004 CRI.L.J. 3797,in respect of an identical issue. The Division Bench of the KeralaHigh Court in the said decision has held as hereunder:“5.Ext. P-5 representation was made to the CentralGovernment and it was addressed to the Secretary toGovernment of India as directed in the detention order. Itis a very detailed representation. That was also rejected https://hcservices.ecourts.gov.in/hcservices/ and it was informed by Ext.P-6, dated 28-5-2004, despatchedon 31-5-2004, as follows:“With reference to the representation dated 4-5-2004made by Shri.B.Nandakumar, a COFEPOSA detenu, he is herebyinformed that the aforesaid representation has beencarefully considered by the Joint Secretary, CentralEconomic Intelligence Bureau, Deptt. Of Revenue, Ministry ofFinance, New Delhi being the Detaining Authority but it isregretted that the same has been rejected.Sd/-(N.RAJAGOPALAN)UNDER SECRETARY TO THE GOVERNMENT OF INDIA”This shows that the representation addressed to theSecretary was considered only by the Joint Secretary, thatthe representation was disposed of after more than threeweeks and was not disposed of applying mind by the competentauthority. Delay of 16 years was held to be unexplained bythe Apex Court in Pabitra N. Rana v. Union of India, AIR1980 SC 798 : (1980 Cri LJ 452) and in Khaidem Ibocha Singhv. State of Manipur, AIR 1972 SC 438. It is pointed out bythe learned Central Government Standing Counsel that anothercommunication was also sent to him on 31-5-2003 by the UnderSecretary informing that Secretary has disposed of therepresentation. The learned Senior Standing Counsel wasalso handed over the file. It shows that on receipt of therepresentation the Under Secretary has prepared a note.Behind the note, the Secretary has made an endorsement asfollows:“I have gone through the representation and all relevantpapers. The representation does not merit acceptance.”Even though various contentions including non-supply ofnecessary documents etc. were mentioned in therepresentation, there is no application of mind by theSecretary to Government. The Secretary has just rejectedthe representation. It does not show that he has appliedhis mind. When the authority disposes a representation,which is a constitutional right of the detenu, it cannot bedisposed of like this in a casual manner. Further, theSecretary has not communicated his order to the detenu, butonly the Under Secretary has communicated the order. It istrue that even though making of representation is aconstitutional right, there is no obligation for the CentralGovernment to grant a hearing. It is also not necessarythat an elaborate speaking order should be passed. But from https://hcservices.ecourts.gov.in/hcservices/ the order it should appear that the authority has appliedits mind while disposing of the representation. The ordershould be sent to the detenu. Here the order passed by theSecretary was not sent to the detenu, but only the factum ofrejection of his representation was intimated by the UnderSecretary keeping the detenu in dark regarding the way inwhich his representation was disposed of. There is nothingon record to show that the concerned authority has appliedits mind. Even if the Under Secretary informed him thatSecretary has disposed of his representation, this is notthe way a constitutional obligation is to be discharged bythe Government Secretary. Therefore, there is no properdisposal of the representation. We are of the view that onthis ground alone the detention order will not stand asthere is procedural violation.”The principle laid down by the Division Bench of the Kerala HighCourt in the decision cited supra is squarely applicable to the caseon hand. It is pertinent to note that in the said decision citedsupra, in the intimation, the Under Secretary informed that theSecretary has disposed of his representation, but even then theDivision Bench of the Kerala High Court held that that is not the waya constitutional obligation is to be discharged by the GovernmentSecretary. But in the case on hand, even such averment is absent inthe telegraphic communication as it is not stated in the telegraphiccommunication that the Secretary has dealt with the representationand disposed of the same and on the other hand, a vague statementmade to the effect that the Central Government has considered therepresentation, more particularly, an intimation was sent from alower level officer on behalf of the Under Secretary, which makes itcrystal clear that only the Under Secretary, on behalf of the CentralGovernment, would have dealt with the representation and not theSecretary, namely, the third respondent. Therefore, we have nohesitation to hold that the authority, which is not competent to dealwith the representation, has considered and rejected and sent only atelegraphic intimation and the rejection order was not at all servedto the detenu even as per the submission of the learned CentralGovernment Standing Counsel. 9. This is a classic case wherein the Fundamental Rightguaranteed to the detenu under Article 22(5) of the Constitution ofIndia has been infringed by considering the representation of thedetenu in a most casual and callous manner and that too by anincompetent authority, namely, Under Secretary to the CentralGovernment. In view of all these factors, we have no hesitation tohold that the impugned detention order is vitiated not only on theground of consideration of the representation of the detenu by aincompetent authority but also on the ground of non-application ofmind by the competent authority viz., The Secretary to Government, https://hcservices.ecourts.gov.in/hcservices/ Ministry of Consumer Affairs, Food and Public Distribution(Department of Consumer Affairs), New Delhi, the third respondentherein. 10. At this juncture, it is also relevant to mention that theview taken by the Division Bench of the Kerala High Court in thedecision cited supra was accepted and agreed by taking a similar viewby a Division Bench of this Court in an unreported decision inH.C.P.No.329/2009 by the order dated 08.07.2009 [P.Sekaran v. TheSecretary to Govt. Coopertion, Food and Consumer ProtectionDepartment, Secretariat, Chennai 600009 and Others].11. For the aforesaid reasons, the impugned detention order isunsustainable in law. Accordingly, this Habeas Corpus Petition isallowed and the detention order passed by the second respondentdated 27.04.2012 in No.C3/D.O/9/2012 is hereby set aside. The detenueviz., Senthamaraikannan, Son of Anbazhagan, aged about 30 years, whois confined at Central Prison, Cuddalore is directed to be set atliberty forthwith unless he is required in connection with any othercase.Sd/-Assistant Registrar/True Copy/Sub Assistant Registrar jvmTo1.The Secretary to Government, Cooperation, Food and Consumer Protection Department, 2nd Floor, Namakkal Kavignar Maligai Secretariat, Chennai 600 009.2.The District Collector and The District Magistrate, Cuddalore District, Cuddalore. 3.The Secretary to Government, Ministry of Consumer Affairs, Food and Public Distribution, (Department of Consumer Affairs) Room No.270, Krish Bhavan, New Delhi-110 001 https://hcservices.ecourts.gov.in/hcservices/

4.The Superintendent, Central Prison, Cuddalore.5.The Joint Secretary to Government Public (Law and OrderO Fort.Saint George, Chennai-9.6.The Public Prosecutor, Madras High Court. H.C.P.No.1147 of 2012 KJ(CO)DRL : 27/08/2012