Madras High Court
Sahul Hameed vs Additional Secretary To Government Of ... on 14 November, 2006
Author: D. Murugesan
Bench: D. Murugesan, P. Murgesen
ORDER D. Murugesan, J.
1. The petitioner by name H.Sahul Hameed is the detenu, and is detained by the District Collector and District Magistrate, Sivagangai District, in exercise of the powers conferred upon him 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 (Act No. 7 of 1980), by his order dated 25.7.2006.
2. The facts leading to the detention are that on 20.7.2006 at about 21.00 hours, the Special Tahsildar (Civil Supplies), Sivagangai, Special Tahsildar (Flying Squad), Sivagangai, Special Revenue Inspector (Flying Squad), Sivagangai and Special Deputy Tahsildar (Flying Squad), Sivagangai conducted a surprise search under the supervision of the District Supply Officer, Sivagangai in the house at Nurjahan Street, which belongs to the detenu. In the search 11 barrels (capacity of 200 litres) containing 2140 litres of Blue Colour Kerosene meant for Public Distribution System were found. Apart from the barrels, four ration cards of various individuals and six empty plastic cans were also found. As per the statement of the detenu on the same day at 23.00 hours, further search was conducted in a thatched shed belonging to one Iyappan at Raja Chittira Street, Sivagangai and 88 bags (each 50 kgs.) of PDS boiled rice were found. The 11 barrels of blue colour kerosene and the boiled rice meant for Public Distribution System were seized under the cover of mahazar. It was found that the detenu was indulging in procuring PDS rice and PDS kerosene and hoarding the same for selling to make gain. Hence the detaining authority was satisfied that the detenu was a black marketeer and on such satisfaction, the order of detention was made. The order of detention is questioned on the ground that the report forwarded by the State Government under Section 3(4) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (for short, Act 7 of 1980) as to the order of detention dated 25.7.2006 was not considered by the Central Government, and non-consideration of the said report shall vitiate the order of detention.
3. We have heard the learned Counsel for the petitioner, the Assistant Solicitor General of India for the Central Government and the learned Additional Public Prosecutor for the State.
4. The point for determination is as to whether the Central Government is bound to consider the report of the State Government as to the detention order and pass orders thereon. If so, whether the non-consideration of the said report would vitiate the order of detention.
5. The challenge to the order of detention must be first considered with reference to Article 22 of the Constitution of India. The said Article provides various safeguards calculated to protect personal liberty against arbitrary restraint without trial and the safeguards can be regarded as substantial. Basically, the observance of the principles of natural justice, which is intended to act as a check on arbitrary exercise of power, is one of the safeguards enunciated under the said Article. The procedural requirements under the said provision embodies the rule of audi alterem partem to a limited, crucial and compulsive extent by providing that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The order of detention is not curative or reformative or punitive, but of preventive action avowed with the object of preventing a person from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. Such orders of detention shall be judged keeping in mind Article 21 of the Constitution of India, which declares that no person shall be deprived of his life or personal liberty except in accordance with the procedures established by law.
6. Mostly orders of detention are passed on the subjective satisfaction of the detaining authority as to the materials available and the necessity to detain an individual bypassing the normal procedure established in law to bring an accused before the Court of law. Only in that background, one of the basic requirements enunciated under Article 22(5) of the Constitution to safeguard the arbitrary act of the detaining authority is mandated to afford a reasonable and earliest opportunity to the detenu to make a representation against the order of detention. Any unexplained delay in consideration of the representation may vitiate the order of detention.
7. Keeping the above in mind, the point that has arisen should be considered. The relevant provisions of the Act 7 of 1980 conferring the powers either on the Central Government or State Government or on the officers of the Central Government and State Government for the purpose of detaining a person are reproduced as under:
3. Power to make orders detaining certain persons.--(1) The Central Government or a State Government or any officer of the Central Government, not below the rank of a joint Secretary to that Government specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government specially empowered for the purposes of this section by that Government may, if satisfied, with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community it is necessary so to do, make an order directing that such person be detained.
Explanation.--For the purposes of this sub-section, the expression "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" means--
(a) committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955 (10 of 1955), or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in, any commodity essential to the community; or
(b) dealing in any commodity--
(i) which is an essential commodity as defined in the Essential Commodities Act, 1955 (10 of 1955), or
(ii) with respect to which provisions have been made in any such other law as is referred to in clause (a), with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid.
...
(3) When any order is made under this section by an officer mentioned in Sub-section (2) he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government:
Provided that where under Section 8 the grounds of detention are communicated by the authority making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that for the words "twelve days", the words "fifteen days" shall be substituted.
(4) When any order is made or approved by the State Government under this section or when any order is made under this section by an officer of the State Government not below the rank of Secretary to that Government specially empowered under Sub-section (1), the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.
Under Sub-section (1) of Section 3, either the Central Government or the State Government, as the case may be, or the officers empowered for the purpose by the respective Governments may, if satisfied, with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community make an order directing that such person be detained. For the purpose of clamping the order of detention, the detaining authority has relied upon sub clause (i) & (ii) of clause (b) of Sub-section (1) of Section 3, wherein, if the detaining authority is satisfied as to the fact that any person is dealing in the commodity as defined under the Essential Commodities Act, 1955 with a view to make gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of the Act or other law, he may do so. Sub-section (3) contemplates that whenever such an order is made by an officer mentioned in Sub-section (2) of Section 3, he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter. On communication of the said order, the State Government shall approve the order of detention within a period of twelve days, failing which the order shall not remain in force. As soon as the order is made or approved by the State Government, the factum of detention shall be reported to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity within seven days, as contemplated under Sub-section 4 of Section 3.
8. The mandate cast on the detaining authority to report to the State Government as to the order of detention together with the grounds on which such order is made cannot be regarded as an empty formality, as it has an element of right on the detenu for such consideration by the Government as to whether the detention order is supported by materials as to the satisfaction of the detaining authority and as to whether such detention is necessary. Only on the above principle, the right to make a representation is embodied and recognised. As the right to make representation includes a right to have the disposal of the said representation by the State Government under Sub-section (3) of Section 3, any failure on the part of the State Government to dispose of the said representation would vitiate the order of detention. Keeping the above in mind, if we consider the purport of the requirement for the State Government to forward a report after the orders of detention to the Central Government, the only conclusion that could be arrived by the Court is that the forwarding of the report to the Central Government is also not an empty formality and the said requirement is intended keeping the fundamental right conferred on an individual under Article 21 coupled with the right to make a representation under Article 22(5) of the Constitution of India. In fact the detaining authority is obligated to forward to the State Government not only the grounds on which the detention order is made but also such other particulars as in his opinion have a bearing on the matter. The words "such other particulars as in his opinion have a bearing on the matter" employed in Sub-section (3) would indicate that those particulars are required to be furnished to the State Government not for a mere intimation but for consideration as to whether there exists any justification for passing of the order of detention. In fact the very same words are also employed in Sub-section (4), which mandates that the State Government shall within seven days report the factum of detention to the Central Government and while communicating the grounds on which the order was made, it shall also forward such other particulars as in the opinion of the State Government have a bearing on the necessity for the order. The particulars required to be furnished to the Central Government cannot also be considered to be an empty formality, but they are required only for the Central Government to consider the necessity of the order of detention and pass appropriate orders on the same.
9. That apart, Sub-section (4) of Section 3 cannot be read in isolation, as the said provision should be read along with the provisions of Section 14 of the Act 7 of 1980, which reads as under:
14. Revocation of detention orders.--(1) Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified--
(a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government;
(b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government.
(2) the revocation or expiry of a detention order shall not bar the making of a fresh detention order under section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be, is satisfied that such an order should be made.
10. Both the State and the Central Governments have got the power to revoke the order of detention. When the State Government is empowered to consider the representation and could revoke the same, a similar power is also vested in the Central Government for exercising in appropriate cases. Such power can be exercised not only on a representation made by the detenu, but also on a report received from the State Government. The only requirement for the Central Government to consider the necessity to pass the order of detention is the knowledge of detention either by a representation from the detenu or a report from the State Government. Though Sub-section (4) of Section 3 does not indicate specifically as to the corresponding obligation for the Central Government to consider and pass orders on the report of the State Government, we are of the considered view that forwarding the report by the State Government to the Central Government as contemplated under Sub-section (4) of Section 3 is not an empty formality and cannot be construed only to keep the record complete, as it has got a definite purpose in terms of the fundamental right of the detenu guaranteed under Articles 21 and 22(5) of the Constitution of India. In this context, the power conferred on the Central Government to consider and revoke the order of detention under Section 14 shall also be kept in mind. We therefore hold that the report of the State Government shall be considered and orders shall be passed by the Central Government and non-consideration of either the representation made by the detenu or the report received from the State Government would certainly result in violation of the fundamental right guaranteed under Article 22(5) of the Constitution of India and in such event, the order of detention is vitiated and is liable to be set aside.
11. A similar question as to whether the Central Government should consider and pass orders on the report of the State Government arose under the provisions of COFEPOSA. Sub-section (2) of Section 3 of the said Act mandates the State Government to send a report to the Central Government and the said provision is in pari materia to the provisions of Sub-section (4) of Section 3 of the Act 7 of 1980. Section 11 of the COFEPOSA Act also provides a power on the Central Government for revocation, as contemplated under Section 14 of the Act 7 of 1980. While considering the scope of the power of the Central Government under the COFEPOSA Act to consider the report of the State Government, the Apex Court in Tara Chand v. State of Rajasthan , has held as follows:
Section 11(1) of the COFEPOSA clearly enjoins that the Central Government may revoke or modify an order passed by the State Government....Once a representation is made to the Central Government, it is duty bound to consider the same in order to exercise its discretion either in rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to violation of the provisions of Article 22(5) as as to render the detention unconstitutional and void.
A similar question under the provisions of COFEPOSA Act again came up for consideration before the Apex Court in Shyam Ambalal Siroya v. Union of India , wherein it has been held as follows:
The power of the Central Government to revoke the order of detention implies that the detenu can make a representation for exercise of that power. Any petition for revocation of an order of detention should be dealt with reasonable expedition....It may be permissible for the Central Government to take reasonable time for disposing any revocation petition. But it would not be justified in ignoring the representation for revocation of the detention as a statutory duty is cast upon the Central Government. It is necessary that the government should apply its mind and either revoke the order of detention or dismiss the petition, declining to order for revocation.
Both the above judgments were quoted with approval by the Apex Court in the subsequent judgment in Sabir Ahmed v. Union of India .
12. In view of the above judgments of the Apex Court, we hold that the power of the Central Government to revoke the order of detention must be read with the corresponding duty to consider and pass orders on the report of the State Government.
13. Coming to the facts of this case, admittedly, the State Government had forwarded the report to the Central Government on 2.8.2006 and the said report was received by the Central Government on 7.8.2006. In terms of Sub-section (4) of Section 3 of the Act 7 of 1980, the State Government also forwarded the other particulars leading to the grounds of detention. As those particulars were in Tamil and the Central Government was not in a position to consider the same for want of English translation, it requested the State Government to furnish the English version of the documents in the communication dated 11.8.2006. It is the specific stand of the learned Assistant Solicitor General of India that in spite of the said request, the State Government has failed to forward the English version of the documents called for and for the said purpose, the report has not been considered and no order is passed. The learned Additional Public Prosecutor, though has submitted that the report was forwarded to the Central Government, is not in a position to furnish the further details as to whether the English version of the documents were either furnished along with the report or at least when they were required by the Central Government in its communication dated 11.8.2006. From the facts, it is clear that the Central Government has not so far considered and taken any decision on the report of the State Government forwarded under Sub-section (4) of Section 3 of the Act 7 of 1980.
14. For the above reasons, we are of the considered view that the order of detention is vitiated and the same is liable to be set aside. Accordingly, the habeas corpus petition is allowed and the impugned order of detention made in C.M.P.No.3 of 2006 (CS) dated 25.7.2006 passed by the third respondent is set aside. The detenu is directed to be set at liberty forthwith, unless his presence is required in connection with any other case.