Madras High Court
N. Selvaraj vs The District Magistrate And Collector ... on 18 April, 1995
Equivalent citations: 1996CRILJ2192
JUDGMENT Janarthanam, J.
1. One N. Selvaraj, petitioner, is the brother of the detenu Subbaian. The detenu, it is said, is a bootlegger. Apart from the ground case as set out in the grounds of detention, he had come to adverse notice in eight other cases. The District Magistrate and Collector, of Nagapattinam Quaide-Milleth District, Nagapattinam (first respondent) in exercise of the powers confered by sub-section (1) of Section 3 of Tamil Nadu Act 14 of 1982 clamped upon the detenu the impugned order of detention in his proceedings C.O. No. 75/94 dated 5-12-94 with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and health.
2. Mr. A. K. S. Thahir, learned counsel appearing for the petitioner would press into service the following points :
(1) There was no due and proper intimation to the blood relations of the detenu as respects the place of his detention within a reasonable time from the date of his detention;
(2) The representation dated 22-12-94 addressed to the Chief Minister of Tamil Nadu had not at all been considered;
(3) The representation dated 23-12-94 made by Mr. N. Selvaraj, brother of the detenu, sent directly to the Advisory Board had not at all been considered of by the second respondent Government till up today;
(4) The possibility of the detenu being available as a free person to commit the occurrence in the ground case, the occurrence relating to which happened on 15-11-94, is rather remote especially when no material, in the shape of document, had been furnished to the detenu that he paid the fine amount imposed in adverse case No. 8 and in the absence of such a document showing payment of fine, it is not at all possible for him to have committed the occurrence in the ground case as he had been lodged in prison.
(5) The non-furnishing of a copy of the letter sent to the Assistant Director, Forensic Laboratory, Tanjore, by Judicial Magistrate No. I, Nagappattinam, making a request to analyse the sample bottle sent to him, vitiates the order of detention.
(6) The reaction or response of the first respondent Detaining Authority as to the materials revolving on the questions of foisting of a false case and illegal detention of the detenu by the Sponsoring Authority, as stated by the bail application (Crl. M.P. No. 1508/94) filed by the detenu before the Court of Sessions, Nagapattinam, not getting reflected in the impugned order of detention is a factor vitiating the detention.
3. Mr. R. Reghupathi, learned Additional Public Prosecutor, representing the respondents, would however, repel such submission and produce the relevant files for perusal and consideration of this Court.
4. Point No. 1. From a perusal of the file, we are able to find a communication dated 6-12-94 emerging from the Sponsoring Authority, namely the Inspector of police, Keevalur Circle, Keevalur, addressed to one Sundari, wife of the detenu, intimating her that her husband Subbaian, the detenu, had been lodged on 6-12-94 at Central prison, Trichy, pursuant to an order passed under the Tamil Nadu Act 14 of 1982 and this sort of a communication had been served upon her on 6-12-94, the date on which the impugned order had been served on the detenu while he was lodged in prison. In such state of affairs, it cannot be stated that there was no due and proper communication intimating the blood relations of the detenu as respects the place of his detention within a reasonable time from the date of his detention. This point as such bristles next to nothing.
5. Point No. 2. The second point revolves on the question of non-consideration of the representation dated 22-12-94 sent to the Chief Minister of Tamil Nadu. The moot question that crops for consideration is as to whether the so-called representation, said to have been sent to the Chief Minister of the Tamil Nadu may be considered as a representation made to the State Government. The further question that crops for consideration is that if the same is to be construed as a representation made to the State Government, whether such a representation is in the proper form. In answer to those two questions, our attention had been drawn to certain decisions of the Apex Court of this country, besides the salient provisions adumbrated under Section 3(60) of the General Clauses Act, 1897 (for short 'Act 1897') defining 'State Government'. We shall now proceed to consider them.
6. Section 3(60) of the Act 1897 defines 'State Government' as below :
(a) ...
(b) ...
(c) as respects anything or to be done after commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a State, the Governor, and in a Union territory, the Central Government ...
7. From what has been extracted above, it is rather crystal clear that State Government in a State shall mean the Governor and none else. On the face of the sanguine provisions abumbrated under Section 3(60) of Act 1897, we can straightway hold that the so called original representation stated to have been sent to the Chief Minister of Tamil Nadu, cannot at all be stated to have been sent to the State Government of Tamil Nadu. We can recapitulate here that Section 8 of Act 14 of 1982 confers a right on the detenu an opportunity of making a representation against the order of detention to the State Government, which is in tune with the Constitutional mandate, as adumbrated under article 22(5) of the Constitution of India.
8. Certain decisions on which our attention has been drawn, may now fall for consideration in the arena of discussion. In Mohinuddin v. District Magistrate , there was an inordinate and unexplained delay in the detenu's representation to the Chief Minister, the authority to consider the representation. An explanation had been offered stating that the Chief Minister remained on tour and busy with important matters of the State. Such an explanation was not accepted and consequently the Apex Court rendered continued detention of the detenu illegal and unconstitutional.
9. The decision, as above referred to, is not at all applicable to the facts of the instant case. Under the Rules of Business of the Government, the power to consider the representation made to the Government had been delegated to the Secretary to Government, prohibition and Excise Department, Fort St. George, Madras 600 009. In paragraph 7 of the grounds of detention, it has been specifically averred that if the detenu wishes to make any representation, he should address it to the Secretary to Government, prohibition and Excise Department, Fort St. George, Madras 600 009 and forward it through the Superintendent of prison, in which he is confined, as expeditiously as possible. It is further stated therein that any representation that is made by him will be duly considered by the Government and will also be placed before the Advisory Board for consideration under Section 10 of Tamil Nadu Act 14 of 1982.
10. As a matter of fact, he had not sent any representation to such authority nor did he make any representation to the Government, thereby meaning 'Governor'. If he had made any representation to the Governor, then the representation so made ought to have been directed to the concerned authority for consideration. The representation in this case had been sent only to the Chief Minister, who is not the authority under the Government to consider and dispose of the representation.
11. In Rumana Begum v. Strte of Andhra Pradesh (1993 (2) SCC (Supp) 341) a representation had been made to the Governor instead of to the Chief Secretary to the State Government. There was a delay of 174 days in transmitting the representation to the State Government and ultimately there is a delay of about six months in its disposal from the date of representation. The delay so caused was sought to be explained by stating that representation deliberately made to the Governor, knowing well that it had to be addressed to the Chief Secretary, with a view to create a ground for delay and that it was a mere non-statutory representation, in view of earlier representation made by detenu, which were expeditiously disposed of. The Supreme Court rejected such explanation as untenable and ultimately held that representation made to Governor must be treated to have been made to the State Government and unexplained and unreasonable delay in the disposal of that representation vitiated the order of detention.
12. In Raghavendra Singh v. Superintendent District Jail, Kanpur , the Apex Court held that under Section 3(8) of the General Clauses Act, the 'Central Government' means the President and a representation addressed to the President must, therefore, be considered to be a representation properly addressed to the Central Government. The view, as expressed in the decision as above referred to, is analogous to the view expressed in Rumana Begum v. State of Andhra Pradesh (1993 (2) SCC (Supp) 341) Supra.
13. In Shalini Sont v. Union of India the Apex Court, as respects the form of representation expressed in paragraph 4 at page 1489, 1490 thus :
... The representation has not to be made in any prescribed form. There is no formula nor any magical incantation like (open sesame to be repeated or chanted in order to qualify a communication as a representation. So long as it contains a demand or a request for the release of the detenu in whatever from or language couched and a ground or a reason is mentioned or suggested for such release, there is no option but to consider and deal with it as a representation for the purpose of article 22(5) of the Constitution".
14. In the instant case, we have already referred to, that the so-called representation stated to have been sent to the Chief Minister, can by no stretch of imagination, be construed to be a representation made to the State Government. No doubt true it is that the representation sent to the Chief Minister raises the question of validity of the order of detention, besides containing a prayer for revocation of the detention. Though such a prayer is there in the representation, yet, in view of the finding that such a representation cannot at all be construed to be a representation made to the Government, no consequence could flow from there. This point is also answered against the detenu.'
15. Point No. 3. No doubt true it is that one N. Selvaraj, the brother of the detenu had sent a representation on 23-12-94 to the Advisory Board, which is available at page 107 of the file. A perusal of the said representation reveals that a request had been made to the Advisory Board seeking permission to permit the detenu to engage a lawyer of his choice or a retired Government servant to assist him in the proceedings before the Advisory Board. A further request was also made for the examination of the witnesses on his behalf before the Advisory Board. Apart from these two requests, nothing is further traceable in the said representation. The Advisory Board, in fact, met on 13-1-95 and considered this representation and eventually expressed the final opinion that there is sufficient cause for his detention. It is the settled proposition of law that the Advisory Board need not write a speaking or a reasoned out order as is being done in Courts. The Advisory Board referred to the representation dated 23-12-1994 and then only repressed its final opinion. Further, as a matter of right, the detenu is not entitled to have a lawyer of his choice to defend him in the proceedings before the Advisory Board and this is made explicitly crystal clear by sub-section (5) of Section 11 of the Tamil Nadu Act 14 of 1982 and it prescribes that nothing in that Section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any manner connected with reference to Advisory Board. As stated earlier, the representation had been sent only for the specific purpose of making a request to the Advisory Board to permit the detenu to examine witnesses on his behalf and also to engage a legal practitioner of his choice to defend him in the enquiry and nothing further. Such being the case, there is nothing for the second respondent-government to consider and in this view of the matter, this point also merits little substance and the same is consequently rejected.
16. Point No. 4, No doubt it is true that in adverse case No. 8 the detenu-accused was convicted and sentenced to pay a fine of Rs. 250, in default simple imprisonment for three weeks in C.C. No. 1544/94 dated 27-9-94 by Judicial Magistrate No. 1, Nagapattinam for the commission of Crime relating to possession of I. D. Arrack. In the said case, the detenu was stated to have paid the fine amount. Undisputed a fact it is that no material in the shape of any document had been made available to the detenu to point out that the detenu in fact paid the fine amount. If the fine amount had not been paid, naturally the detenu-accused had to undergo default sentence imposed on him, on 27-9-94. The default sentence, after all, is for a period of three weeks simple imprisonment that is to say he had to be lodged in prison as a convicted person for a period of three weeks on and from 27-9-94 and in such an eventuality the period of imprisonment would expire on 18-10-1994. Thereafter, the detenu would be a free bird. The occurrence in the ground case took place only on 15-11-1994 long subsequent in adverse case No. 8. In such state of affairs, it goes without saying that even if he had to undergo the sentence, as had been imposed on him in adverse case No. 8, the sentence of imprisonment could have expired long before the date, on which the offence in the ground case was stated to have been committed by him. In this view of the matter, there is no merit in this point also and consequently the same is rejected.
17. Point No. 5. The sample bottles of illicitly distilled arrack were stated to have been sent for chemical analysis on 15-11-94 through Court on a requisition emanating from the Inspector of Police, Keevalur and this aspect of the matter had ben referred to by the first respondent-Detaining Authority while summing up the facts relating to the ground case in paragraph 3 of the grounds of detention. No doubt true it is that a copy of the letter forwarding the sample bottles to the chemical analysis had not at all been furnished to the detenu and what had been furnished to the detenu is a copy of report of the Deputy Superintendent of Police, Nagapattinam, addressed to the Assistant Director, Forensic Science Laboratory, Tanjore, which is available at page 26 of the booklet of documents furnished to the detenu. A perusal of the said special report points out that the sample bottle of illicitly distilled arrack sent to Court had been despatched for the purpose of analysis through Head Constable bearing No. 1141. The non-furnishing of a copy of the letter forwarding the sample bottles of illicitly distilled arrack for the purpose of chemical analysis is of no consequence when especially nothing is shown as to any prejudice having been caused to the detenu in the sense of impairment of his right of representation inhering in his favour under Article 22(5) of the Constitution. In this view of the matter, this point also is bereft of any substance and the same is accordingly rejected.
18. Point No. 6. No doubt true it is that the detenu filed bail application in Crl. M.P. No. 1508/94 before the Court of Session, Nagapattinam, for his release on bail relatable to the occurrence in the ground case. A copy of the bail application is available at page 38 of the booklet of documents furnished to the detenu. A perusal of the copy of the bail application reveals that specific averments had been made therein as to the false foisting of the ground case, besides his being taken into illegal custody three days prior to the said occurrence. Admittedly, the bail application so filed, got dismissed. There is no need at all in such a situation, to furnish a copy of the bail application so filed. It is a settled proposition of law that if the detenu had been granted bail in the ground case, it is incumbent on the part of the Detaining Authority to furnish him not only the copy of the bail application filed but also the order made thereon by the Court, before which the said application had been filed. Those documents are required to be given to the detenu for the purpose of making an effective representation inhering in his favour under Article 22(5) of the Constitution of India. The instant case is not a case of that type, that is to say, the bail application had been dismissed and there was no need at all as stated earlier, to furnish a copy of the bail application or the order passed thereon to the detenu. But nonetheless, a copy had been given to him and this is not a document relied upon by the first respondent-Detaining Authority for clamping upon the detenu, the impugned order of detention. Therefore, the question of consideration of such a document before ever the impugned order of detention is passed, would never arise for consideration at all. As such the point is liable to be rejected and the same is accordingly rejected.
19. For the reasons stated above, this Habeas Corpus petition deserves to be dismissed and the same is accordingly dismissed.
20. Petition dismissed.