Anantha Pndian v. The Commissioner of Police, Chennai City, Egmore, Chennai - 600 008

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.06.2012CORAM:THE HONOURABLE MR.JUSTICE K.N.BASHAandTHE HONOURABLE MR.JUSTICE P.DEVADASSHabeas Corpus Petition No.479 of 2012Anantha Pndian... Petitioner/Detenuvs.1. The Commissioner of Police, Chennai City, Egmore, Chennai - 600 008.2. The Secretary to the Government, Food & Consumer Protection Department, Government of Tamil Nadu, Fort St. George, Chennai - 600 009.3. The Secretary to the Government, Department of Consumer Affairs, Government of India, Ministry of Consumer Affairs, Food and Distribution Department, Room No.270, Krishi Bhavan, New Delhi - 110 001.... Respondents* * *Prayer : Petition filed under Article 226 of the Constitution ofIndia praying for issuance of a writ of Habeas Corpus calling forthe entire records connected with the order of detention passed ofthe first respondent herein in Memo No.2/2012 dated 10.02.2012quashing the same and setting aside the order of detention passedagainst the petitioner herein, viz., Anantha Pandian, S/o.Arjunanand setting him at liberty now detained in the Central Prison,Puzhal, Chennai.* * *For Petitioner.. Mr.N.R.Elango, Senior Counsel for M/s.S.D.Venkateswaran https://hcservices.ecourts.gov.in/hcservices/ For Respondents 1&2.. Mr.K.P.Ananthakrishna, Addl. Public ProsecutorFor Respondent 3.. Mr.Haja Mohideen GisthiO R D E R(Order of the Court was made by K.N.BASHA, J.)The petitioner is the detenu and he has come forward withthis petition challenging the order of detention dated 10.02.2012passed by the first respondent branding him as 'Black Marketeer'.2. The first respondent passed the detention order based onthe adverse case registered against the petitioner in Crime No.577of 2011 on the file of the Civil Supplies C.I.D., Chennai, for thecontravention of the Section 3(1) of the Solvent Raffinate andSlop (Acquisition, Sale, Storage and Prevention of use inAutomobile) Order 2000 r/w Section 7(1)a(ii) of the EssentialCommodities Act, 1955 r/w Section 285 IPC on the allegation ofillegal storage of adulterated oil in the tanker lorry bearingRegistration No.TN-23-B-3373. 3. The Inspector of Police, Central Crime Branch, Team-V, whohas led the special team, alleged to have seen thepetitioner/detenu loading oil in the Tanker Lorry bearingReg.No.TN-23-B-3373 and ascertained that he is the owner of a firmfunctioning under the name and style as Balaji Transports.Thereafter, a case was registered in Crime No.441 of 2011 for theabove said offences on the file of M-1, Madhavaram Police Stationand subsequently, it was transferred to the file of the Inspectorof Police, Civil Supplies C.I.D., Chennai, in Crime No.577 of2011. The sample oil seized was sent for chemical examination tothe Forensic Science Department, Mylapore, Chennai, andultimately, it is alleged that as per the Chemical Analysisreport, the liquids were found to be Diesel admixed with residualoil (used engine oil) and suspended carbaneous substances weredetected in the extracts. Accordingly, the said case was underinvestigation which necessitated the detaining authority, namely,the first respondent to pass the impugned detention order dated10.02.2012. 4. Mr.N.R.Elango, learned Senior Counsel for thepetitioner/detenu, though raised several grounds, would mainlycontend that the detenu has sent his representation dated27.02.2012 to both the State Government and the Central Governmentauthorities, but both the authorities have failed to consider therepresentation and as such, the valuable fundamental right of the https://hcservices.ecourts.gov.in/hcservices/ detenu has been violated due to the conduct of non-considerationof the representation by the Central Government as well as by theState Government authorities. It is pointed out by the learnedSenior Counsel for the petitioner/detenu that there is no reply orany order received from the State Government and as per thecounter filed by the Central Government, it is stated at paragraph4 that the representation of the detenu dated 27.02.2012 wasreceived from the office of the first respondent with a coveringletter dated 13.03.2012, but they have not received the Englishversion of detention order and grounds of detention and as such,they have stated that the Central Government was not able toconsider the representation of the detenu dated 27.02.2012. It isvehemently contended by the learned Senior Counsel for thepetitioner/detenu that it is mandatory on the part of the StateGovernment as well as the Central Government to consider therepresentation of the detenu as he raised several grounds apartfrom seeking the relief of furnishing certain documents and thestate Government neither supplied the document sought for norpassed any orders on the representation and the Central Governmenthas come forward with the version that they have not furnishedwith the required documents in spite of their request made to theState Government and as a result, the fundamental right of thedetenu conferred under Article 22(5) of the Constitution of Indiahas been violated. It is pointed out by the learned SeniorCounsel that if the State or the Central Government could haveconsidered the representation of the petitioner/detenu, theauthorities could have taken note of the grounds raised in therepresentation and the possibility of revocation of the detentionorder cannot be ruled out.5. The learned Senior Counsel for the petitioner placedreliance on the following decisions :(1)USHA AGARWAL V. UNION OF INDIA (2007 (1) SCC 295)and(2)SAHUL HAMEED V. ADDITIONAL SECRETARY TO GOVT. OFINDIA (2007 (1) MLJ (Crl) 1089). 6. Mr.K.P.Ananthakrishna, learned Additional PublicProsecutor, would contend that the detenu, namely, the petitionerherein, has preferred the present petition on 01.03.2012 and thesame was admitted and notice was taken by the learned AdditionalPublic Prosecutor on 02.03.2012, whereas, the representation isdated 27.02.2012 and as such, there is absolutely no necessity forconsidering the representation as the detenu has alreadychallenged the very detention order and the matter is sub judicebefore this Court. In support of such contention, the learnedAdditional Public Prosecutor would place reliance on the decision https://hcservices.ecourts.gov.in/hcservices/ of the Hon'ble Apex Court in DAVID PATRICK WARD V. UNION OF INDIA(1992 SCC (Cri.) 814).7. Mr.Haja Mohideen Gisthi, learned Senior Central GovernmentStanding Counsel, would contend that as far as the CentralGovernment is concerned, they have received the representation ofthe petitioner/detenu dated 27.02.2012 through the firstrespondent along with the covering letter dated 13.03.2012 on20.03.2012. It is pointed out by the learned Senior CentralGovernment Standing Counsel that thereafter, the centralGovernment issued a reminder dated 23.03.2012 to the stateGovernment seeking for furnishing of the English version of thedetention order, grounds of detention, approval of stateGovernment and the supporting documents. But they have beenfurnished only the English version of approval of state andsupporting documents in the form of Booklet on 23.03.2012. Butthe state Government has not furnished the other documents soughtfor in spite of reminder sent by the central Government dated23.03.2012 and as a result, the central government was not able toconsider the representation of the detenu and as such, there is nofault on the part of the central Government for non-considerationof the representation of the detenu dated 27.02.2012.8. We have given our careful and anxious consideration to therival contentions put forward by either side and perused thematerials available on record.9. At the outset, it is to be stated that it is not disputedby the State Government and the Central government that therepresentation of the detenu dated 27.02.2012 was received and thesame was not considered by both the authorities. As far as theState Government is concerned, it is contended by the learnedAdditional Public Prosecutor that as the detenu soon after sendingthe representation dated 27.02.2012 filed the present petitionbefore this Court on 01.03.2012 and the same was admitted on02.03.2012, on the same day the learned Additional PublicProsecutor has taken notice for the State Government, namely, therespondents 1 and 2 and as the petitioner has challenged the verydetention order and the matter is sub judice, there is no questionof considering the representation of the detenu at all. 10. The learned Additional Public Prosecutor placed relianceon a decision of the Hon'ble Apex Court in DAVID PATRICK WARD V.UNION OF INDIA reported in 1992 SCC (Cri) 814. The Hon'ble ApexCourt in the said decision held as hereunder :"23. The representation stated to have been sent tothe State Government, it is fairly conceded, is nothingmore than a copy of the writ petitions filed before this https://hcservices.ecourts.gov.in/hcservices/ Court. That was received by the Sate Government throughNaini Jail authorities on May 5, 1992. As stated in theaffidavit of the third respondent while steps were takenby the State Government for processing the same forconsideration, the writ petitions have come to be filedon May 5, 1992. Notice on the writ petitions wasreceived by the State Government on May 13, 1992.Therefore, the question of consideration of therepresentation on a matter, which is sub judice did notarise. If regard is had to the clear and firm standtaken in the counter-affidavit filed on behalf of theState Government that the reliefs sought by thepetitioners in the writ petitions cannot be granted,question of the State Government now considering therepresentation, which is nothing but the writ petitionitself, does not arise. In this situation, the decisionof this Court in Narendra Purshotam Umrao V. B.B.Gujral(1979) 2 SCC 637 and Syed Farooq Mohammad V. Union ofIndia (1990) 3 SCC 537 on the basis of which need forexpeditious consideration of representation by the StateGovernment was emphasised cannot be of any help." It is relevant to point out that in the said decision, the Hon'bleApex Court has taken note of the specific and definite stand takenby the State Government by filing a counter-affidavit before thisCourt. It is to be stated that as far as the case on hand isconcerned, the state Government has not filed any counter-affidavit till date and it is only now contended by the learnedAdditional Public Prosecutor before this Court by raising theabove said point.11. Be it as it may, the fact remains that the detenu hassent his representation dated 27.02.2012 and he has filed thispresent petition on 01.03.2012 and the same was admitted and thenotice was taken on 02.03.2012. The undisputed fact remains, asalready pointed out by us, that the central government is totallyunaware of filing of any petition on the date of receiving therepresentation of the detenu dated 27.02.2012. The said factor isvery much evident from the counter filed by the central governmentbefore this Court in this matter. It is pertinent to note that itis specifically and categorically stated by the central governmentin its counter-affidavit that they have received therepresentation of the detenu dated 27.2.2012 through the firstrespondent herein along with covering letter dated 13.03.2012 on20.03.2012 enclosing only the English version of therepresentation of the detenu dated 27.02.2012 without enclosingthe detention order, grounds of detention and other relevantdocuments. It is further specifically stated in the said counter- https://hcservices.ecourts.gov.in/hcservices/ affidavit by the central Government that thereafter they have senta reminder dated 23.3.2012 to the State Government seeking Englishversion of detention order, grounds of detention, approval of thestate Government and supporting documents. But the StateGovernment has furnished only English version of its approval andsupporting documents in the form of Booklet, but they have notfurnished the English version of the detention order, grounds ofdetention etc., It is also relevant to note that in the very samecounter, the central Government has specifically stated that eventhereafter they have sent another reminder dated 30.03.2012, butthey have not received any information or any documents sought forby them and as a result, they were not in a position to considerthe representation of the detenu dated 27.02.2012. Therefore, itis crystal clear that the state Government effectively preventedthe central Government from considering the representation of thedetenu dated 27.02.2012 and as a result, the fundamental right ofthe detenu guaranteed under Article 22 (5) of the Constitution ofIndia is certainly violated and as a result, the detention orderis vitiated.12. The learned Senior Counsel for the petitioner by placingreliance on the decision of the Hon'ble Apex Court in Usha AgarwalV. Union of India reported in 2007 (1) SCC 295 pointed out that itis the duty of the State and the Central Government to considerthe representation submitted by the detenu. In the said decision,the Hon'ble Apex Court has held as hereunder :"24. The order of detention states that detenu canmake representations to (i) the detaining authority, (ii)the Central Government, and (iii) the Advisory Board, inregard to the detention. The detenu has a constitutionalas also statutory right to make a representation againstdetention not only to the detaining authority but to anyauthority which can revoke the order of detention. ...."(emphasis supplied by us)13. The learned Senior Counsel also placed reliance on thedecision of the Division Bench of this Court in respect of similarand identical matter as that of the instant case in Sahul HameedV. Additional Secretary to Govt. of India reported in 2007 (1) MLJ(Crl) 1089. In the said decision, the Division Bench of thisCourt held as follows :"10. Both the State and the Central Governmentshave got the power to revoke the order of detention.When the State Government is empowered to consider therepresentation and could revoke the same, a similarpower is also vested in the Central Government forexercising in appropriate cases. Such power can be https://hcservices.ecourts.gov.in/hcservices/ exercised not only on a representation made by thedetenu, but also on a report received from the StateGovernment. The only requirement for the CentralGovernment to consider the necessity to pass the orderof detention is the knowledge of detention either by arepresentation from the detenu or a report from theState Government. Though Sub-section (4) of Section 3does not indicate specifically as to the correspondingobligation for the Central Government to consider andpass orders on the report of the State Government, weare of the considered view that forwarding the report bythe State Government to the Central Government ascontemplated under Sub-section (4) of Section 3 is notan empty formality and cannot be construed only to keepthe record complete, as it has got a definite purpose interms of the fundamental right of the detenu guaranteedunder Articles 21 and 22(5) of the Constitution ofIndia. In this context, the power conferred on theCentral Government to consider and revoke the order ofdetention under Section 14 shall also be kept in mind.We therefore hold that the report of the StateGovernment shall be considered and orders shall bepassed by the Central Government and non-considerationof either the representation made by the detenu or thereport received from the State Government wouldcertainly result in violation of the fundamental rightguaranteed under Article 22(5) of the Constitution ofIndia and in such event, the order of detention isvitiated and is liable to be set aside.11. A similar question as to whether the CentralGovernment should consider and pass orders on the reportof the State Government arose under the provisions ofCOFEPOSA. Sub-section (2) of Section 3 of the said Actmandates the State Government to send a report to theCentral Government and the said provision is in parimateria to the provisions of Sub-section (4) of Section3 of the Act 7 of 1980. Section 11 of the COFEPOSA Actalso provides a power on the Central Government forrevocation, as contemplated under Section 14 of the Act7 of 1980. While considering the scope of the power ofthe Central Government under the COFEPOSA Act toconsider the report of the State Government, the ApexCourt in Tara Chand V. State of Rajasthan, AIR 1980 SC1361 : (1980) 2 SCC 321, has held as follows:"Section 11(1) of the COFEPOSA clearlyenjoins that the Central Government may revoke or https://hcservices.ecourts.gov.in/hcservices/ modify an order passed by the State Government.Once a representation is made to the CentralGovernment, it is duty bound to consider the samein order to exercise its discretion either inrejecting or accepting it. If there is inordinatedelay in considering the representation thatwould clearly amount to violation of theprovisions of Article 22(5) as to render thedetention unconstitutional and void."A similar question under the provisions of COFEPOSAAct again came up for consideration before the ApexCourt in Shyam Ambalal Siroya V. Union of India, AIR1980 SC 789 : (1980) 2 SCC 346, wherein it has been heldas follows:"The power of the Central Government torevoke the order of detention implies that thedetenu can make a representation for exercise ofthat power. Any petition for revocation of anorder of detention should be dealt withreasonable expedition. It may be permissible forthe Central Government to take reasonable timefor disposing any revocation petition. But itwould not be justified in ignoring therepresentation for revocation of the detention asa statutory duty is cast upon the CentralGovernment. It is necessary that the governmentshould apply its mind and either revoke the orderof detention or dismiss the petition, decliningto order for revocation."Both the above judgments were quoted with approvalby the Apex Court in the subsequent judgment in SabirAhmed V. Union of India, (1980) 3 SCC 295.12. In view of the above judgments of the ApexCourt, we hold that the power of the Central Governmentto revoke the order of detention must be read with thecorresponding duty to consider and pass orders on thereport of the State Government.13. Coming to the facts of this case, admittedly, https://hcservices.ecourts.gov.in/hcservices/ the State Government had forwarded the report to theCentral Government on 2.8.2006 and the said report wasreceived by the Central Government on 7.8.2006. Interms of sub-section (4) of Section 3 of the Act 7 of1980, the State Government also forwarded the otherparticular leading to the grounds of detention. Asthose particulars were in Tamil and the CentralGovernment was not in a position to consider the samefor want of English translation, it requested the StateGovernment to furnish the English version of thedocuments in the communication dated 11.8.2006. It isthe specific stand of the learned Assistant SolicitorGeneral of India that in spite of the said request, theState Government has failed to forward the Englishversion of the documents called for and for the saidpurpose, the report has not been considered and no orderis passed. The learned Additional Public Prosecutor,though has submitted that the report was forwarded tothe Central Government, is not in a position to furnishthe further details as to whether the English version ofthe documents were either furnished along with thereport or at least when they were required by theCentral Government in its communication dated 11.8.2006.From the facts, it is clear that the Central Governmenthas not so far considered and taken any decision on thereport of the State Government forwarded under sub-section (4) of Section 3 of the Act 7 of 1980." 14. The Division Bench in the decision cited supra alsoplaced reliance on the provisions under Section 14 of thePrevention of Blackmarketing and Maintenance of Supplies ofEssential Commodities Act, 1980 and the said provision reads ashereunder :"14. Revocation of detention orders. - (1) Withoutprejudice to the provisions of Section 21 of the GeneralClauses Act, 1897 (10 of 1897), a detention order may,at any time, be revoked or modified -(a) notwithstanding that the order has been made byan officer of a State Government, by that StateGovernment or by the Central Government;(b) notwithstanding that the order has been made byan officer of the Central Government or by a StateGovernment, or by the Central Government.(2) the revocation or expiry of a detention ordershall not bar the making of a fresh detention orderunder section 3 against the same person in any case,where fresh facts have arisen after the date of https://hcservices.ecourts.gov.in/hcservices/ revocation or expiry on which the Central Government ora State Government or an officer, as the case may be, issatisfied that such an order should be made."15. The Division Bench in the decision cited supra alsoplaced reliance on the decision of the Hon'ble Apex Court andultimately held that the non-consideration of the representationof the detenu by the State Government as well as by the CentralGovernment would certainly result in violation of the fundamentalright conferred under Article 22(5) of the Constitution of Indiaand accordingly, held that the detention order is vitiated.16. The principles laid down by the Hon'ble Apex Court aswell as the Division Bench of this Court in the decisionscited supra are squarely applicable to the facts of the instantcase as in this case, as already pointed out by us, therepresentation of the detenu dated 27.02.2012 was not at allconsidered by both the authorities, namely, state Government aswell as the central Government.17. At the risk of repetition, it is to be reiterated, asalready pointed out by us, that though the State Government hascome forward with the version that in view of thepetitioner/detenu filing the writ petition on 01.03.2012 itselfsoon after his representation dated 27.02.2012, the matter hasbecome sub judice, the fact remains that the state Government hasnot come forward with any counter to that effect till date.However, even accepting such version, we are of the consideredview that it is the duty of the State Government to furnishrelevant documents to the central government enabling the centralgovernment to consider the representation of the detenu dated27.02.2012. As we have already pointed out, as far as the centralgovernment is concerned, they are not aware about the filing ofthe present petition at the time of receipt of the representationof the detenu dated 27.02.2012 along with the covering letterdated 13.03.2012 sent by the first respondent herein. As it isalready stated, the central Government received the notice in thepresent petition only in the month of May 2012. However, asalready pointed, there is a lapse on the part of the StateGovernment for not furnishing the full records to the CentralGovernment and the Central Government having received therepresentation of the detenu dated 27.02.2012 coupled with therecords already sent by the State Government, even as per theadmitted version of the central Government as per its counter,namely, English version of the approval of the State Governmentand supporting documents in the form of Booklet, cannot beabsolved by performing its statutory and mandatory obligation ofconsidering the representation of the petitioner / detenu dated https://hcservices.ecourts.gov.in/hcservices/

27.02.2012 which resulted in violation of fundamental right of thepetitioner/detenu guaranteed under Article 22 (5) of theConstitution of India and thereby, the detention order isvitiated.18. In view of the aforesaid reasons coupled with theprinciples laid down by the Hon'ble Apex Court and the DivisionBench of this Court in the decisions cited supra, we are of theconsidered view that the non-consideration of the representationof the petitioner dated 27.02.2012 by the state and the centralgovernment would vitiate the impugned detention order.Accordingly, the petition is allowed and the order of detentionpassed by the first respondent herein in Memo No.2/2012 dated10.02.2012 is hereby set aside and the petitioner, viz., AnanthaPandian, S/o.Arjunan, who is now confined in the Central Prison,Puzhal, Chennai, is directed to be released forthwith unless hisdetention is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrargg To1. The Commissioner of Police, Chennai City, Egmore, Chennai - 600 008.2. The Secretary to the Government, Food & Consumer Protection Department, Government of Tamil Nadu, Fort St. George, Chennai - 600 009.3. The Secretary to the Government, Department of Consumer Affairs, Ministry of Consumer Affairs, Food and Distribution Department, Government of India, Room No.270, Krishi Bhavan, New Delhi - 110 001. https://hcservices.ecourts.gov.in/hcservices/

4. The Public Prosecutor, Madras High Court, Madras.VS(CO)km/30.7.H.C.P.No.479 of 2012