S.Velammal v. The Secretary to Government, Department of Co-operation, Food and Consumer Protection, Secretariat, Chennai-600 009

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 18.01.2012CORAMTHE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMARandTHE HONOURABLE MR.JUSTICE P.DEVADASSH.C.P.(MD)No.1104 of 2011S.Velammal .. Petitioner Vs.1.The Secretary to Government, Department of Co-operation, Food and Consumer Protection, Secretariat, Chennai-600 009.2.The District Collector and District Magistrate, Theni District, Theni.3.The Inspector of Police, C.S.CID, Uthamapalayam, Theni District... RespondentsPetition filed under Article 226 of the Constitution of India toissue a Writ of Habeas Corpus to call for the records pertaining tothe Detention Order passed by the second respondent in hisProceedings Detention Order No.3 of 2011 (CS) dated 22.11.2011 andquash the same as illegal and set the detenu namely Selvaraj,S/o.Subbiah, aged about 48 years, confined in Central Prison,Madurai, at liberty.For petitioner : Mr.T.LeninkumarFor respondents : Mr.A.Ramar, Addl.Public ProsecutorORDER(Order of the Court was made by N.PAUL VASANTHAKUMAR, J.)The petitioner, who is the wife of the detenu-Selvaraj, has comeforward with this Habeas Corpus Petition seeking for the relief ofquashing the Detention Order No.3/2011(CS) dated 22.11.2011, passedby the second respondent, detaining him as a “Black Marketeer” underSection 3(2)(a) read with 3(1) of the Prevention of Blackmarketingand Maintenance of Supplies of Essential Commodities Act, 1980 (“Act”in short). https://hcservices.ecourts.gov.in/hcservices/

22.The detention order was passed on 22.11.2011. The HabeasCorpus Petition was admitted by this Court on 30.11.2011. A counteraffidavit was filed by the second respondent. 3.The learned counsel for the petitioner raised many grounds inthis Habeas Corpus Petition. The main ground raised in Ground 'd', isthat the grounds of detention made by the detaining authority, is theverbatim reproduction of the proposal of the third respondent, viz.the Sponsoring Authority, and that the proposal sent by thesponsoring authority has been reproduced by the second respondent-Detaining Authority without even altering 'I', 'we' and other words.Therefore, the learned counsel for the petitioner submitted that theabove verbatim reproduction of the statement made by the sponsoringauthority, would vitiate the detention order, as there is noindependent subjective satisfaction arrived at by the detainingauthority. 4.The learned counsel for the petitioner placed reliance on thedecision of the Supreme Court in (2005) 8 SCC 390, in the case ofRajesh Vashdev Adnani v. State of Maharashtra and Others, andcontended that if the Detaining Authority is not independentlyapplying his mind and simply following the verbatim words used by thesponsoring authority, the detention order is vitiated. 5.The learned Additional Public Prosecutor relying on thecounter affidavit, submitted that the Detaining Authority applied itsmind thoroughly on the records placed before him, and passed theorder of detention. 6.We have considered the rival submissions, perused the proposalof the sponsoring authority, the detention order as well as thejudgment relied on by the learned counsel for the petitioner citedsupra. 7.The sponsoring authority has sent the proposal for keeping thedetenu in prison in vernacular language and the same has beenincorporated in paragraph-3 of the detention order, which runs asunder:“05.11.2011k; Bjjp 23.30 kzpf;F Bjdp khtl;l Ml;rpah; mth;fspd; cj;jut[g;go, fpilj;j ufrpa jftypd; Bghpy; cj;jkghisak; Foikg;bghUs; tHA;fy;Fw;wg;g[ydha;t[j; Jiw Ma;thsuhfpa ehd;, SSI re;jpuBrfh;, Bjdp khtl;lk;gwf;Fk; gil jdpj;Jiz tl;lhl;rpah; jpU.tp.gpughfud;, gwf;Fk; gil tUtha;<Ma;thsh; jpU.RUspahz;lth;, Mz;og;gl;o tl;l tHA;fy; mYtyh; jpU.uBk&;,Mz;og;gl;o fhty; Ma;thsh; jpU.fz;zd; kw;Wk; jdpg;gphpt[ jiyikf; fhtyh;jpU.tp$auh$; MfpBahUld; Tl;lhf jkpHf muR bghJkf;fSf;F bghJ tpdpBahfj;jpl;lj;jpd; fPH; tHA;Fk; Foikg; bghUl;fs; flj;Jtij jLf;Fk; bghUl;L Bjdpto kJiu Buhl;oy; Mz;og;gl;o jhYfh bfhz;lkehaf;fd;gl;o fhty; Brhjidr;rhtoapy; thfdj; jzpf;if bra;J bfhz;oUe;jBghJ Bjdp gf;fkpUe;J kJiuiaBehf;fp te;j kz;bzz;bza; BlA;fh; yhhpahd Ashok Leyland TN67 C2288vd;w thfdj;ij epWj;jp yhhpapd; Bkw;gFjpapy; cs;s Koia jpwe;J ghh;f;f mjpy;eLBlA;fpy; jkpHf murhy; bghJkf;fSf;F bghJ tpdpBahfj; jpl;lj;jpd;tHA;fg;gLk; Burd; ePyepw kz;bzz;bza; 3400 ypl;lh; nUe;jJ.” https://hcservices.ecourts.gov.in/hcservices/ 3On a perusal of the said statement in the proposal of the sponsoringauthority as well as the detention order, it is evident that theverbatim proposal has been taken as a ground by the DetainingAuthority in the detention order. Similar issue was considered bythe Hon'ble Supreme Court in its decision reported in (2005) 8 SCC390 in the case of Rajesh Vashdev Adnani v. State of Maharashtra andOthers. Paragraphs 9 to 13 of the said judgment runs thus:“9.Perusal of the proposal made by the sponsoringauthority and the order of detention passed by thedetaining authority would show that except by substitutingword “he” by “you” no other change was effected.10.But for the said change the proposal and the orderof detention is verbatim the same.11.Mr Naphade, learned Senior Counsel appearing forthe respondent submitted that from the records producedbefore us it would be evident that there had been dueapplication of mind on the part of Respondent 2 in passingthe order of detention. This may be so but keeping in viewthe safeguards envisaged under Article 22 of theConstitution it was absolutely essential for the secondrespondent herein to apply her mind not only at the time ofgrant of approval to the proposal for detention but alsowhen the actual order of detention and grounds thereof areprepared. To the aforementioned extent there has been noapplication of mind on the part of the second respondentherein, and, thus, we are of the opinion that the impugnedorder of detention dated 3-11-2004 cannot be sustained.12.The views we have taken derive support from thejudgment of this Court in Jai Singh v. State of J&K whereinthe Division Bench held: (SCC pp. 561-62, para 1)“We had called for the records and the learnedcounsel for the State of Jammu & Kashmir hasproduced the same before us. First taking up thecase of Jai Singh, the first of the petitionersbefore us, a perusal of the grounds of detentionshows that it is a verbatim reproduction of thedossier submitted by the Senior Superintendent ofPolice, Udhampur to the District Magistraterequesting that a detention order may kindly beissued. At the top of the dossier, the name ismentioned as Sardar Jai Singh, father's name ismentioned as Sardar Ram Singh and the address isgiven as Village Bharakh, Tehsil Reasi. Thereafterit is recited ‘The subject is an important memberof.…’ Thereafter follow various allegationsagainst Jai Singh, paragraph by paragraph. In thegrounds of detention, all that the DistrictMagistrate, has done is to change the first threewords ‘the subject is’ into ‘you Jai Singh, s/oRam Singh, resident of Village Bharakh, Tehsil https://hcservices.ecourts.gov.in/hcservices/ 4Reasi’. Thereafter word for word the policedossier is repeated and the word ‘he’ wherever itoccurs referring to Jai Singh in the dossier ischanged into ‘you’ in the grounds of detention. Weare afraid it is difficult to find greater proofof non-application of mind. The liberty of asubject is a serious matter and it is not to betrifled with in this casual, indifferent androutine manner.”13.For the reasons aforementioned the order ofdetention passed against the detenu Vashdev Gobardhan asalso the impugned judgment cannot be sustained. It isquashed accordingly. He is directed to be released if notwanted in connection with any other case.”In the said judgment, it is held that if the detention order reflectsthe verbatim words of the sponsoring authority, there is nonapplication of mind on the part of the detaining authority and hencethe detention order can be treated to be passed on non-application ofmind. 8.In view of the said judgment as well as the findings statedsupra by extracting the sponsoring authority's version which isaccepted in toto by the detaining authority in the order ofdetention, we are of the view that the impugned detention orderpassed by the second respondent is liable to be set aside. 9.In the result, the Habeas Corpus Petition is allowed and theorder of detention passed by the second respondent in his ProceedingsNo.3/2011 (CS) dated 22.11.2011 is set aside. The detenu is directedto be released forthwith unless his presence is required inconnection with any other case. Sd/-Assistant Registrar(Crl.Side)/True Copy/Sub Assistant Registrar To1.The Secretary to Government, Government of Tamil Nadu, Department of Co-operation, Food and Consumer Protection, Secretariat, Chennai-600 009.2.The District Collector and District Magistrate, Theni District, Theni. https://hcservices.ecourts.gov.in/hcservices/

53.The Superintendent, Central Prison, Madurai4.The Inspector of Police, C.S.CID, Uthamapalayam, Theni District.5.The Joint Secretary to Govt. Public (Law & Order) Fort St.George, Chennai – 96.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.Kmssk/30.01.2012 /7c -5p/- H.C.P.(MD)No.1104 of 2011 18.01.2012