PATTY B JEGANATHAN Vs. CHIEF ELECTION COMMISSIONER

JUDGEMENT

(1.) THE Honble THE Chief Justice Since, in these two writ petitions common question of law and facts have been raised, they had been heard and disposed of by this common order.

(2.) IN W.P.No.8289 of 2011 the petitioner has prayed for the issuance of a Writ of Declaration declaring the instructions dated 07.02.2011 issued by the 1st respondent in his Letter No.76/instructions/2011 as ultra virus to the Constitution of INdia.

(3.) MR.N.Jothi, learned counsel appearing for the petitioner in both the writ petitions made elaborate submissions and we gave patient hearing to him. Learned counsel submitted that under the guise of implementing electoral restrictions, the trading activities of tradesmen and the normal pursuit of life by the citizens of Tamil Nadu are brought under the control of the Election Commission of India, as if emergency has been proclaimed in the State of Tamil Nadu. It is contended that by the implementation of the impugned instructions the fundamental rights as contained in Articles 19(1)(d) and 19(1)(g) have been taken away. According to the learned counsel the instructions 4.6.1. to 4.7.5 are in the nature of curtailment of business and trading activities within the territory of Tamil Nadu and the same are contrary to the established law made by the Parliament or the State Legislature. It is contended that without any rhyme or reason the flying squads of respondents 1 and 2 with the assistance of the 3rd respondent are intercepting vehicles on public roads, entering into houses even after sun set and at odd hours and seizing money, materials, goods, trading goods, etc. without following or observing the established procedures. Learned counsel submitted that search and seizure can be conducted only in the manner as contained in Sections 99 to 105 of the Code of Criminal Procedure. Learned counsel submitted that the people of Tamil Nadu are entitled to lead their normal life with respect to their day to day activity of procurement of material, indulge in manufacturing process, transport of finished and unfinished goods, movement of goods, purchase of articles, sale of articles, transaction of money for their commercial activity, etc. Learned counsel submitted that the impugned instructions have been blindly issued by the respondents without any guidelines nor there is any practical approach in these instructions. Learned counsel further referred to Instruction No.4.7.3. and submitted that as per this instruction F.I.R. must be lodged immediately against the persons from whom any seizure is made. Learned counsel submitted that F.I.R. can be lodged only when a commission of a cognizable offence is made out. According to the learned counsel mere possession of money or goods in trade FIR cannot be lodged and carrying goods of merchandise is not a cognizable offence. Hence, the said instruction is only illegal and unconstitutional. Learned counsel further submitted that the dictating terms of instructions is nothing but a mockery of exercise of power by the Election Commission of India. Lastly, the learned counsel submitted that there is no acceptable manner of procedure contemplated to ascertain the purpose of the seizure or for its return. The instructions contained in the letter dated 07.02.11, is therefore, particularly Instruction Nos.4.6.1 to 4.7.5, are ultra vires to constitution and the respondents must be restrained from implementing these instructions.