Madras High Court
B.Ruckmani vs The District Collector on 5 February, 2008
Bench: M.Chockalingam, S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/02/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.(MD) No.608 of 2007 B.Ruckmani .. Petitioner vs 1.The District Collector Madurai District Madurai 2.State of Tamil Nadu Rep. by its Secretary to Government Govt. of Tamil Nadu Department of Co-operation, Food & Consumer Protection Chennai 9. 3.The Additional Secretary Government of India Ministry of Consumer Affairs, Food and Public Distribution (Department of Consumer Affairs), No.270, Krishi Bhavan New Delhi .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus to call for the records pertaining to the proceedings of the first respondent made in C.M.P.No.5 of 2007 (C.S) dated 18.11.2007 and quash the same and set the petitioner's husband detenu by name "V.Balakrishnan S/o Valliappan" as Black Marketeer at liberty from Central Prison, Madurai. !For Petitioner ... Mr.K.Jeganathan ^For Respondents ... Mr.S.P.Samuel Raj Additional Public Prosecutor for RR1 and 2 Mr.B.Rajendran for R3 :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J.) Invoking the writ jurisdiction of this Court, the petitioner one Ruckmani, the wife of one Balakrishnan, who was detained by an order of the first respondent dated 18.11.2007, under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, terming him as Black Marketeer, has brought forth this petition seeking for a writ of habeas corpus to quash that order.
2.The affidavit in support of the petition is perused along with the grounds. The Court heard the learned Counsel for the petitioner. The order under challenge is also perused. The Court also heard the learned Additional Public Prosecutor for the respondents 1 and 2.
3.From the perusal of the order, it could be seen that on 13.10.2007, when the Inspector of Police, Civil Supplies Criminal Investigation Department, Madurai Unit, was on duty, the Special Tahsildar, Flying Squad, Office of the District Supply Officer, Madurai, along with two others appeared in the Station and gave a complaint. It is alleged in the complaint that on 13.10.2007, the District Supply Officer, Madurai, along with the Special Tahsildar, Flying Squad, Office of the District Supply Officer, Madurai, and other Officials who were on duty, received reliable information and made a search in Arul Ayyanar Rice Mill, situated in Door No.43/2 Chinthamani Road, Madurai, at about 5.30 PM; that they found 514 bags each weighing 50 kgs of boiled rice, intended for Public Distribution System; that at the time of search, the detenu and one Mariappan were present in the Rice Mill; that it was ascertained that the detenu Balakrishnan was the owner, and Mariappan was the Accountant; that the said detenu was running the Rice Mill for the past 10 years where the paddy was being purchased in the open market and after hulling, it is being sold as rice; that it came to the knowledge of the authorities that he used to procure the ration rice intended for Public Distribution System by paying additional amount over and above the rate fixed by the Government, by illegal means, move the rice clandestinely to his Mill, polish the same and mix it with the open market rice, and by selling the same in the open market, he was making huge profit thereby amassing huge wealth at the expense of the poor card holders, and thus, he diverted the ration rice intended by the Government to the benefit of the poor and downtrodden families at the subsidized rate thereby depriving the poor as well as causing loss to the Government exchequer. It is further alleged that at that time, his statement was recorded by the Flying Squad Tahsildar in the presence of witnesses; and that all these 514 bags of Public Distribution System rice were actually recovered under a cover of mahazar.
4.On the strength of the said complaint, the Inspector of Police, Madurai Civil Supplies Criminal Investigation Department, registered a case in Crime No.809 of 2007 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act, 1955 and arrested him. He was produced before the Judicial Magistrate No.IV, Madurai, and he was sent for judicial remand. He applied for bail, and the conditional bail was also subsequently ordered. The sample rice was taken to the Laboratory for quality analysis. It was also certified that it was actually earmarked for the Public Distribution System, and the matter was placed by the recommending authority before the detaining authority. The detaining authority after going through the materials available, was thoroughly satisfied that it was a fit case where detention order has got to be passed. Accordingly, he passed the order, which was also served upon the petitioner's husband Balakrishnan. Under the circumstances, this petition has been brought forth seeking to set aside that order.
5.Advancing the arguments on behalf of the petitioner, the learned Counsel Mr.K.Jeganathan assailed the order on the following four grounds.
(i) There was no reason to pass such an order since there was only one incident according to the sponsoring authority, and also the detaining authority could not have any subjective satisfaction. There was a representation made even on 27.11.2007, and it was also sent from the Central Prison, Madurai, immediately; but, the same was not considered within the reasonable time. The disposal of the representation was made only on 10.1.2008. Thus, the delay noticed, was undue and unexplained. It is unreasonable, which would suffice to set aside the order.
(ii) The first respondent was to satisfy that he has forwarded a report forthwith after passing the order, to the State Government together with the grounds on which the order has been made, and such other particulars as in his opinion have bearing on the matter as contemplated under sub-section (3) of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, which has not been done in the instant case.
(iii) The second respondent should satisfy that he has forwarded a report within seven days from the date of approval to the third respondent Central Government together with the grounds on which it has been made, and such other particulars as in his opinion have bearing on the matter as per sub-section (4) of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, which has also not been done.
(iv) The detenu was arrested on 13.10.2007 at 21.00 hours, and remanded to judicial custody. He was released on bail on 25.10.2007. The copy of the bail order was placed before the first respondent by the authorities before passing the order of detention; but, the copy of the application for bail was not produced before the first respondent and the representation sent by the petitioner's husband for the copy of the bail application on the ground that certain material particulars were mentioned in the bail application, and the medical records pertaining to the ailment, were also annexed thereto, to make effective representation; but, it was not furnished to the detenu in order to make effective representation. For all the above reasons, the order has got to be necessarily quashed.
6.In answer to the above, it is contended by the learned Additional Public Prosecutor for the State that the petition does not carry any merit whatsoever. According to him, in compliance of the provisions of the Act, within three days from the date of the passing of the order, a report with all the particulars was furnished before the second respondent, and hence, it has got to be taken as one done forthwith.
7.As regards the other ground that the report containing all the necessary particulars, should have been placed before the third respondent within 7 days, it is submitted by the learned Additional Public Prosecutor that in the instant case, an order was passed on 18.11.2007; that it was furnished on 3.12.2007, and thus, it cannot be stated that it was out of time, and after the preparation of the copies, it was furnished in time.
8.As far as the ground of delay was concerned, the learned Additional Public Prosecutor would submit that there was no delay at all. He brought to the notice of the Court the averments found in the additional counter. He also stated that the representation was received on transmission from the Government, on 10.12.2007, and immediately, the same was sent to the sponsoring authority i.e., the Inspector of Police, Civil Supplies, CID, Madurai Unit, on 11.12.2007; that the remarks of the sponsoring authority were received in the office on 13.12.2007 itself; that in view of the fact that 15.12.2007 and 16.12.2007 were holidays, the same was received by the section only on 17.12.2007; that while processing the same, some defects were found, and hence, further remarks were sought for by way of clarification on 17.12.2007; that the report was received by the Collectorate on 20.12.2007; that 21.12.2007, 22.12.2007, 23.12.2007 and 25.12.2007 were Government holidays, and hence, it reached the concerned section only on 26.12.2007; that subsequently, the records also reached the concerned section on 26.12.2007; that the District Supply Officer was to proceed to Madras to attend a State level review meeting held on 27.12.2007; that 28.12.2007 and 29.12.2007 were holidays; that on his return from Madras to Madurai, he submitted the papers for approval before the first respondent on 31.12.2007; that the report was sent to the State Government on 1.1.2008; but, the same was received on 3.1.2008; that since 5.1.2008 and 6.1.2008 happened to be Government holidays, the file was processed and approved by the Minister; that the rejection letter was prepared on 10.1.2008, and it was served upon the detenu the very next day. He would further submit that it is true that there is some delay; but, the delay was due to the administrative reasons; that it remained explained; that it cannot be stated that it is unreasonable or inexcusable; that it is excusable, and hence, on that ground the order need not be set aside.
9.Added further the learned Additional Public Prosecutor that as far as the bail application was concerned, it is an admitted position that the petitioner's husband Balakrishnan was bailed out by an order dated 25.10.2007, by the Judicial Magistrate No.IV, Madurai; that the bail order was placed before the detaining authority; that it is true that copy of the bail application was not issued to the petitioner's husband; but, in the bail order, it has been clearly incorporated that on medical grounds, bail was granted; that under the circumstances, it cannot be stated that subjective satisfaction without the presence of the bail application, could not be arrived at.
10.Relying on the decision of the Apex Court reported in (2006) 2 SUPREME COURT CASES (CRI) 90 (SUNILA JAIN V. UNION OF INDIA AND ANOTHER), the learned Additional Public Prosecutor would submit that the documents to be placed before the detaining authority should be one which are necessary to arrive at the subjective satisfaction, and not all the documents must be placed; that in the instant case, the non-furnishing of bail application to the detenu or not placing the same before the detaining authority will not in any way cause prejudice to the detenu, and under the circumstances, the petition has got to be dismissed.
11.The Court paid its anxious consideration on the submissions made. After doing so and looking into the materials available and in particular, the order under challenge, this Court has to necessarily set aside the order.
12.It is not in controversy that the first respondent upon the recommendations made by the sponsoring authority, has passed an order branding him as Black Marketeer. Pursuant to the complaint given, 514 bags of rice which were meant for Public Distribution System, were actually seized under a cover of mahazar, and a case came to be registered. He was also arrested and produced before the Court, and he was granted bail. The first respondent has clearly pointed out all the circumstances attendant and the necessity that arose for passing such an order. True it is, the Court has to necessarily agree with the State that in a given case like this, such an order could be passed; but, the law stipulates certain mandates to be followed which are actually in the form of rights to which the detenu is entitled. Sub-section (3) to Sec.3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 reads thus:
"3.Power to make orders detaining certain persons:
(1)....
(2)....
(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."
13.As per the above provision of law, forthwith it should be reported to the State Government along with all material particulars. The word "forthwith" employed in the said provision has got its own connotation, and it has got its own tenor. Admittedly, it was sent after three days. Sending the same after a period of three days, cannot be said to be forthwith. If at all it was sent after a period of three days, the department should have come with the explanation why such a delay was caused, but not done so.
14.The other provision namely sub-section (4) to Sec.(3) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, stipulates that the report along with the particulars must be sent to the third respondent Central Government within a period of seven days. But, in the instant case, though the order was passed on 18.11.2007, the Central Government has neither filed the counter nor come with any statement that it was received in time. That apart, there is no material available to show that it was either sent within a period of 7 days or received by the Central Government, and thus, it remained not answered.
15.As far as the third ground was concerned, this Court is able to see inordinate delay. Actually, the detention order was passed on 18.11.2007. It is admitted even in the counter filed by t6he first respondent, that the representation was made on 27.11.2007. It is further to be pointed out that once it was given on 27.11.2007, the same was received by the office on transmission from the Government only on 10.12.2007. While it is admitted that it was sent on 27.11.2007, it is a matter of surprise to note that it was received by the authority concerned only on 10.12.2007. Though it was placed before the sponsoring authority on 11.12.2007, the next day, the remarks were called for, and it was received on 13.12.2007. The same was actually taken to the section on 17.12.2007. While processing, as if certain defects were found, further remarks were called for, and the clarification was also received on 20.12.2007. From 20.12.2007, it was pending with the Government for approval. Only after a period of 11 days, it has reached the Ministry only at the end of the month. This Court is able to notice delay stage by stage from the time when the representation was received and placed for remarks and when the remarks were sent and when it was pending consideration. Now, the department is desirous of calling it as administrative delay. As far as the administrative delay is concerned, law stipulates a reasonable time that could be condoned. Thus, if the delay is reasonable, then it could be accepted. But, in the instant case, the representation, admittedly, was made on 27.11.2007, and an order was prepared only on 10.1.2008 after nearly about 44 days. In all the stages, the Court is able to notice delay which remained unexplained. The explanation sought to be given by the additional counter was nothing but in order to make up the delay so caused, which, in the opinion of the Court, was not reason which could be taken into consideration for explaining away the delay. Thus, there is inordinate and unexplained delay what is noticed by the Court. This, in the opinion of the Court, has caused prejudice to the detenu, and the same would suffice to set aside the order.
16.Lastly, it is an admitted fact that the detenu has come out on bail. The bail order has also been placed before the first respondent before passing the order in question. Nowhere it is stated in the course of the order that copy of the bail application was filed. The Judicial Magistrate considered the reasons adduced, and the medical grounds along with the certificates issued by the medical persons, and thought it fit for granting bail. It is true that the application was not placed before the detaining authority. At this juncture, the learned Additional Public Prosecutor relied on a decision of the Apex Court reported in (2006) 2 SUPREME COURT CASES (CRI) 90 (SUNILA JAIN V. UNION OF INDIA AND ANOTHER). A perusal of the said decision would clearly reveal that the documents to be placed in the hands of the detaining authority should be one which are necessary for arriving at the subjective satisfaction. In the instant case, one added circumstance in favour of the detenu was that the copy of the bail application was not furnished to him in order to make effective representation. One thing to say is that even though the copy of the bail application need not be one which, according to the department, was necessary to arrive at the subjective satisfaction by the detaining authority, the copy of the bail application should have been furnished to the detenu to enable him to make effective representation. Under the circumstances, this Court is of the considered opinion that all the reasons stated above, would suffice to quash the order.
17.Accordingly, this habeas corpus petition is allowed setting aside the order of detention passed by the first respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in any other case.
18.Before parting with the order, the Court has to point out that in a given case which, in the opinion of the detaining authority, is a serious one and will have a reflection over the society and also where an individual was to amass wealth by making out huge profit out of the Public Distribution System rice and by putting his hands over the poverty stricken, the authorities should exercise more care and vigil what has not been done in the case on hand, which has resulted in the quashing of the order. However, the department must see that these things should not happen in future.
nsv/ To
1.The District Collector, Madurai District, Madurai
2.The Secretary to Government Govt. of Tamil Nadu Department of Co-operation, Food & Consumer Protection, Chennai 9.
3.The Additional Secretary Government of India Ministry of Consumer Affairs, Food and Public Distribution (Department of Consumer Affairs), No.270, Krishi Bhavan, New Delhi
4.The Additional Public Prosecutor Madurai Bench of Madras High Court