SAHUL HAMEED Vs. ADDITIONAL SECRETARY TO GOVERNMENT OF

JUDGEMENT

(1.) THE petitioner by name H.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), Sivangangai conducted a surprise search under the supervision of the District Supply Officer, Sivangangai 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 hoaring 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.) 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 requirement 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.