Madras High Court
P.M.S. Mohiadeen Sahib vs The State Of Tamil Nadu Rep on 16 November, 2005
Author: P. Sathasivam
Bench: P. Sathasivam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16/11/2005
CORAM
THE HON'BLE MR. JUSTICE P. SATHASIVAM
AND
THE HON'BLE MR. JUSTICE S.K. KRISHNAN
H.C.P.No.777 of 2005
and HCMP.No.143 of 2005
P.M.S. Mohiadeen Sahib .. Petitioner
-Vs-
1. The State of Tamil Nadu rep.
by the Secretary to Government,
Public (SC) Department
Fort St. George
Chennai 600 009.
2. The Union of India rep. by
The Secretary to the Government
Ministry of Finance
Department of Revenue (COFEPOSA UNIT)
3. The Superintendent of Central Prison
Central Prison, Chennai 600 003. .. Respondents
Petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Habeas Corpus as stated therein.
For petitioner : Mr. B. Kumar, Sr. Counsel
for Mr. S. Palanikumar
For respondents: Mr. A. Kandasamy
Addl. Public Prosecutor for R.1&3
Mr. P. Kumaresan
A.C.G.S.C. For R.2
:ORDER
( Order of the Court was made by P. Sathasivam,J.) The detenu by name P.M.S. Mohiadeen Sahib, who was detained under Section 3 (1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ( in short "COFEPOSA Act") by the impugned proceedings of the first respondent in G.O.No.SR.1/633-3/20 05, dated 08.07.2005, challenges the same in this petition.
2. Heard Mr. B. Kumar, learned senior counsel for the petitioner, Mr. A. Kandasamy, learned Additional Public Prosecutor for respondents 1 and 3 and Mr. P. Kumaresan, learned Additional Central Government Standing counsel for the second respondent.
3. Though several grounds have been raised in the affidavit questioning the impugned detention order, at the foremost, learned senior counsel appearing for the petitioner would submit that though the predetention representation was made on 04.07.2005, which was sent to the Superintendent of Central Prison, Chennai, who forwarded the same to the Law Minister, Government of Tamil Nadu on 05.07.2005 itself, the Detaining Authority has not considered the pre-detention representation made by the petitioner, but passed the detention order on 08.07.2005. It is also contended that even though in the representation dated 21.07.2005 in para 6 there is a specific reference regarding the pre-detention representation dated 04.07.2005 addressed to the Law Minister, there was no proper consideration of the representation dated 21.07.2005. It is also his contention that, inasmuch as the predetention representation dated 04.07.2005 was not placed, considered and disposed of in the manner known to law by the Detaining Authority, the ultimate detention order cannot be sustained. He further contended that the Detaining Authority has not taken sincere and serious efforts in considering the representation dated 21.07.2005, particularly when there is a specific reference to pre-detention representation dated 04.07.2005. In support of the above contentions, the learned senior counsel has relied on the following case laws.
(i)John Martin vs. State of West Bengal (AIR 1975 SC 775);
(ii)A.C.Razia vs. Govt., of Kerala (2004 SCC Criminal 618);
(iii) T.M.Syed Ali vs. State of Tamilnadu(1999 (2) CTC 490) and
(iv) Unreported judgment of this Court dated 02.08.1993 made in HCP. No.138 of 1993.
4. On the other hand, learned Additional Public Prosecutor appearing for respondents 1 and 3 by taking us through the grounds of detention, counter affidavit and placing relevant files, would submit that till detention order was passed, the representation addressed to the Law Minister need not be considered, since the Sponsoring Authority is Customs Department. He also contended that inasmuch as the predetention representation dated 04.07.2005 was not sent to the authority concerned and not available for consideration, the disposal of the representation dated 21.07.2005 cannot be faulted with.
5. We have carefully considered the rival contentions and perused the relevant materials.
6. In the light of the limited issue involved, there is no need to traverse all the factual details as stated in the affidavit as well as in the counter affidavit. It is brought to our notice that on 04.07 .2005, a representation from P.M.S. Mohiadeen Sahib, detenu in this case, addressed to the Law Minister, Government of Tamil Nadu Chennai-9, was sent to the Superintendent of Central Prison, Chennai 600 003 . The postal acknowledgment shows that the said article was delivered by way of Speed Post to the addressee, i.e., the Superintendent of Central Prison, Chennai-3 on 05.07.2005. On instructions, the learned Additional Public Prosecutor has stated that the Superintendent of Central Prison, Chennai-3 has forwarded the said representation to the Law Minister, Government of Tamil Nadu, Chennai - 9 on 05.07.2005 itself. It is to be noted that the impugned detention order was passed on 08.07.2005. Even if it is accepted that the said letter might have been received by the Law Minister on the next day, i.e., on 06.0 7.2005, still the Detaining Authority had two days, before passing the order of detention. It is the grievance of the petitioner that the said representation was not even placed before the Detaining Authority.
7. It is also relevant to refer the representation dated 21.07.2005 made by the detenu on receipt of grounds of detention. The said representation was made from Central Prison, Chennai 3. The said representation was addressed to the Secretary, Law and Order (Public) Department, Secretariat, Chennai 9. It is not in dispute that the said representation has been received by the concerned authority and considered by the Detaining Authority. In this regard it is relevant to refer para 6 (4) of the said representation, which reads as under.
(Tamil version deleted) It is clear from the above extract that there is a specific reference to the earlier representation dated 04.07.2005, which was addressed to the Law Minister by the detenue from Central Prison through the concerned authority. It is specifically stated that the said representation has not been considered by the Detaining Authority.
8. In this regard, it is also useful to refer the stand taken by the Additional Secretary to Government, Public Law and Order Department, Secretariat, Chennai 9, in his counter affidavit dated 25.10.2005. In para 15, it is specifically stated that the Hon'ble Minister for Law considered and rejected the representati on on 12.08.2005 and the same was intimated to the detenu on 13.08.2005, which was received by him on the same day. It is not in dispute and also clear from the information furnished in the counter affidavit that the concerned authority is Law Minister. We have already referred to the predetention representation addressed to the Law Minister, Government of Tamil Nadu, Secretariat, Chennai 9, which was forwarded to the addressee on 0 5.07.2005 itself by the Superintendent, Central Prison, Chennai. In such a circumstance, even if the said representation said to have been forwarded by the Superintendent, Central Prison on 05.07.2005 was not available, the Detaining Authority, while considering the representation dated 21.07.2005, in the light of the specific averment in para 6, could have verified from the records about the fate of the earlier representation said to have been sent on 05.07.2005. Though the learned Additional Public Prosecutor has placed a note file, to show that no such representation dated 04.07.2005 was received by them, a perusal of the said file clearly shows that there is no information whether any effort was made to verify from the office of the addressee, viz., Law Ministry that any such representation was received. In such a circumstance, we are of the view that the stand taken by the first respondent cannot be accepted.
9. Now, let us consider the decisions of the Supreme Court and this Court cited by the learned senior counsel for the petitioner with regard to the above aspect. In the case of John Martin vs. State of West Bengal reported in AIR 1975 S.C. 775, a Three Judge Bench of the Hon'ble Supreme Court, while considering the representation of the detenu, has concluded, "3. ..... This, however, does not mean that the appropriate Government can reject the representation of the detenu in a casual or mechanical manner. The appropriate Government must bring to bear on the consideration of the representation an unbiased mind. There should be, as pointed out by the Court in Haradhan Saha's case, "a real and proper consideration" of the representation by the appropriate Government. We cannot over-emphasis the need for the closest and most zealous scrutiny of the representation for the purpose of deciding whether the detention of the petitioner is justified. "
10. The law laid down in John Martin's case was subsequently followed in the case of A.C. Razia vs. Government of Kerala reported in 2004 SCC (Crl.) 618, which is also a Three Judge Bench decision. While considering the power of the Central Government in considering the representation made by the detenu, their Lordships have concluded, "22. ...... The exercise of the power under Section 11 should not be a mere formality or a farce. Care and vigilance should inform the action of the Government while discharging its supervisory responsibility. As observed in Haradhan Saha case (1974 SCC (Crl.)816) and reiterated in K.M. Abdulla Kunhi case (1991 SCC (Crl.)613, what is required is "real and proper consideration".
The following observation in Abdul Karim (1969 (1) SCC 433) are quite opposite in this context.
"But it is a necessary implication of the language of Article 22(5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate action. In our opinion, the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Article 22 (5) is a valuable constitutional right and is not a mere formality."
23. The same proposition has been highlighted by Rajendra Babu,J. By observing that "there should be full and independent application of mind. "
Even in the dissent judgment, Hon'ble Mr. Justice S.B. Sinha, has accepted the above proposition and concluded, "50. It is therefore, trite that all facts which are relevant for the purpose of giving relief to the detenu are required to be considered. In that view of the matter, the quality of an order passed by the Central government in terms of Section 11(1)(b) of the Act cannot be different from that of the authority which had passed the order."
The above decisions make it clear that considering the representation of detenu is not a mere formality, but the same has to be considered with an unbiased mind and closest and most zealous scrutiny for the purpose of deciding whether the detention is justified or not.
11. It is also relevant to refer the Division Bench decision of this Court in the case of T.M. Syed Ali vs. State of Tamil Nadu reported in 1999 (II) CTC 490, wherein their Lordships have held that representation made denying very occurrence before passing of detention order has to be considered by the detaining authority. They also held that it is the duty of the Sponsoring Authority to forward the same to the Government and failure to consider such representation would vitiate the detention order.
12. In HCP.No.138 of 1993 dated 02.08.1993, a contention was raised, viz., the detenu forwarded a representation on 21.01.1993 to the Detaining Authority, wherein he had asked for copy of the retraction letter dated 19.11.1992. His representation was rejected on 16.02.1993, stating that no such retraction was received by the Sponsoring Authority. The further contention was that the receipt of the retraction letter was later admitted and thus lack of proper consideration and disposal of the representation was evident. With reference to the said contention, the Division Bench, after considering the statement of the learned Public Prosecutor has concluded, "6. .... The detaining authority had acted on the basis of the information furnished by the sponsoring authority. We cannot overlook that the very system contemplated under law, puts the responsibility on every one of these authorities, so that the constitutional right of the detenu was not get thwarted. If there is negligence of callciness on the part of any one authority that will certainly enure in favour of the detenu. If the sponsoring Authority had not furnished correct information to the Detaining Authority, either due to negligence or with an ulterior purpose deliberately, it can make no difference for ultimately the sufferer is the detenu. It is settled law that consideration and representation must be effective and purposeful. If the detaining authority had the benefit of the retraction letter sent by the detenu, the manner in which the representation might have been disposed of may still loom large. On that single ground of improper riskless rejection of representation, detenu is bound to succeed.... "
13. In the light of the above principles, we are of the view that though the detenu has made pre-detention representation on 04.07.2005, which was received by the Superintendent, Central Prison, Chennai and forwarded to the addressee, Law Minister, Government of Tamil Nadu on 05.07.2005 itself, in view of the fact that the same had been reiterated in the representation dated 21.07.2005, the Detaining Authority ought to have verified the earlier representation and passed the order after due consideration. We are satisfied that the Detaining Authority failed to consider these relevant aspects and the detenu is entitled to succeed.
Under these circumstances, the order of detention impugned in this petition is set aside and the petition is allowed. The petitioner/ detenu is directed to be set at liberty forthwith from the custody unless he is required in connection with any other case.
In view of disposal of the main petition, connected HCMP., is closed.
Index:Yes Internet:Yes kh To
1. The Secretary to Government, State of Tamil Nadu Public (SC) Department Fort St. George Chennai 600 009.
2. The Secretary to Government Union of India Ministry of Finance Department of Revenue (COFEPOSA UNIT)
3. The Superintendent of Central Prison Central Prison, Chennai 600 003.
4. The Director General of Police Chennai 4.
5. The Commissioner of Police, Greater Chennai, Chennai 8.
6. The Additional Director General of Prisons, Egmore, Chennai 8.