Law is well settled that sending a telegram by itself is not an authenticated document and it has to be confirmed by a subsequent signed application, representation or an affidavit and the contents of the telegrams have no authenticity at all. This position is clear from the decision of the Honourable Supreme Court reported in 1994 Supp (1) SCC 62 (D.M. v. R. KUMARAVEL), wherein it has been observed as follows :- "9. We may examine the argument of the learned counsel for the detenus from another angle. The detenus have based their case solely on the fact that the contents of the telegrams sent on their behalf were not taken into consideration by the detaining authority. There is nothing on the record to show that before the detention orders were passed any other communication was sent to the detaining authority or to the police, confirming the contents of the telegrams. A telegram by itself is not an authentic document. It is like an unsigned/anonymous communication. Unless a telegram is confirmed by a subsequent signed application, representation or an affidavit, the contents of the telegrams have no authenticity at all and the same cannot be taken into consideration for assessing the value of the other authentic documents on the record. The detention orders were passed by the District Magistrate on the basis of the material placed before him by the police authorities. Any material received by the District Magistrate in the shape of telegrams could not be taken into consideration by him in the absence of any subsequent communication confirming the same. We are, therefore, of the view that the orders of detention could not be challenged on the ground that some material contained in a telegram simpliciter was not taken into consideration by the detaining authority." (Emphasis added)
7. From the aforesaid decision, it is apparent that even assuming that telegram has been sent and the same has been received, such telegram cannot have any authenticity unless it is followed by a written representation.1
Madras High Court
Ananthi vs The Secretary To Government on 30 November, 2009
The petitioner, wife of the detenu, has come forward with the present Habeas Corpus Petition to quash the order of detention passed by the second respondent in Memo No.7/Black Marketing Act/2009, dated 28.9.2009, detaining the detenu Karthigai Rajan, S/o. Raja Nadar, as a 'Black Marketeer' as contemplated under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act (hereinafter referred to as "the Act").
2. The detaining authority in the order of detention has referred to three adverse cases, on the basis of which the detaining authority has clamped the order of detention against the detenu. The three adverse cases were registered by Civil Supplies CID., Chennai Unit Cr.Nos.118/2006, 536/2006 and 551/2009 under Sections 6(4) of TNSC (RDCS) Order 1982 r/w.7(1)(a)(ii) of Essential Commodities Act, 1955. The facts leading to registration of the ground case is as follows :- On 19.9.2009, on the information received from an Informant that one unknown person has been arranging PDS rice bags in rows inside Redhills Bus Stand and he was about to smuggle such bags, the Inspector of Police, Civil Supplies, CID, Chennai City Unit, along with his party rushed to the spot and found Karthigai Rajan, (the detenu), who was arranging PDS rice bags in rows inside the Red Hills bus stand, after noticing the police trying to escape. However, when the police tried to apprehend, the detenu took out an iron rod and tried to assault the Head Constable by uttering that you would all be killed otherwise I could not run the business, but the Head Constable escaped from the said attack. The detenu was surrounded and apprehended and after examining him he was taken to the spot where he stored the rice intended for supply to the poor public under Public Distribution System (in short "PDS") and 55 bags each containing 50 kgs of PDS rice were seized in the presence of witnesses. A case in Civi Supplies, CID, Chennai City Cr.No.553 of 2009 under Sections 6(4) of T NSC (RDCS) Order 1982 r/2 7(1)(a)(ii) of E.C. Act, 1955 and 403, 332 and 307 IPC., was registered. After observing all the formalities, the detenu was produced before the Judicial Magistrate Court-I, Thiruvallur and was lodged at Central Prison, Puzhal, Chennai, as remand prisoner till 01.10.2009.
3. In view of the above, the sponsoring authority has satisfied that the detenu is habitually purchasing ration rice at meagre cost and illegally storing and also transporting to other States with a view to get more pecuniary gain and as such he is a "Black-marketer", as contemplated under Section 3(1) of the Act and hence, sponsored the detenu before the Detaining Authority for passing an order of detention against him. The Detaining Authority, on consideration of the materials placed before him, passed the order of detention against the detenu. The said order is in challenge in the present Habeas Corpus Petition.
3. Heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor for the respondents and perused the materials produced before us.
4. Learned Senior Counsel appearing for the petitioner has raised the following grounds :-
(1) The telegram sent on behalf of the detenu on 19.9.2009 followed by a detailed representation dated 23.9.2009 regarding illegal custody of the detenu by CSCID Chennai Unit on 18.9.2009 at 4.00 P.M., were not considered by the detaining authority, which vitiates the order of detention. (2) The representation dated 2.10.2009 sent by the petitioner was not considered by the detaining authority.
(3) In para 4 of the grounds of detention, the detaining authority has averred that in similar cases bails are granted, whereas no material has been placed to come to the aforesaid conclusion. (4) In para 4 of the grounds of detention, the detaining authority has referred to the detenu coming out on bail in Cr.No.480/2009, whereas no case has been registered against the detenu in Cr.No.480/2009 and, therefore, the order of detention should be set aside on the ground of non-application of mind. (5) Since only the grounds of detention dated 3.10.2009 alone was served on the detenu, it must be taken that no order of detention has been passed as there is nothing on record to show that the order of detention had been served on the detenu. (6) There is no material on record to come to the conclusion that the seized rice comes under the PDS.
5. So far as the first contention is concerned, according to the petitioner, the telegram alleging pre-detention of the detenu on 18.9.2009 had been sent by the petitioner on 19.9.2009 and such telegram had not been considered before passing the order of detention, which vitiates the order of detention. To strengthen such contention, the learned Senior Counsel has relied on an unreported decision of this Court in HCP.No.1295 of 1998 (Karthick v. State rep. by the Secretary to Government, Prohibition and Excise Department and another) and the decision reported in 2007(2) CTC 614 (Sarputhin v. State rep. by the Secretary to Government, Prohibition and Excise Department and another). Learned Senior Counsel for the petitioner has produced the receipt as well as a copy of the telegram to substantiate his contention. Learned Addl. Public Prosecutor has filed his counter affidavit wherein he has stated that no telegram sent by the petitioner on 19.9.2009 was received by the office of the Commissioner and, therefore, such contention should be rejected
6. Law is well settled that sending a telegram by itself is not an authenticated document and it has to be confirmed by a subsequent signed application, representation or an affidavit and the contents of the telegrams have no authenticity at all. This position is clear from the decision of the Honourable Supreme Court reported in 1994 Supp (1) SCC 62 (D.M. v. R. KUMARAVEL), wherein it has been observed as follows :- "9. We may examine the argument of the learned counsel for the detenus from another angle. The detenus have based their case solely on the fact that the contents of the telegrams sent on their behalf were not taken into consideration by the detaining authority. There is nothing on the record to show that before the detention orders were passed any other communication was sent to the detaining authority or to the police, confirming the contents of the telegrams. A telegram by itself is not an authentic document. It is like an unsigned/anonymous communication. Unless a telegram is confirmed by a subsequent signed application, representation or an affidavit, the contents of the telegrams have no authenticity at all and the same cannot be taken into consideration for assessing the value of the other authentic documents on the record. The detention orders were passed by the District Magistrate on the basis of the material placed before him by the police authorities. Any material received by the District Magistrate in the shape of telegrams could not be taken into consideration by him in the absence of any subsequent communication confirming the same. We are, therefore, of the view that the orders of detention could not be challenged on the ground that some material contained in a telegram simpliciter was not taken into consideration by the detaining authority." (Emphasis added)
7. From the aforesaid decision, it is apparent that even assuming that telegram has been sent and the same has been received, such telegram cannot have any authenticity unless it is followed by a written representation.
8. In this context, the learned Senior Counsel has stated that after sending the telegram dated 19.9.2009 a detailed representation was sent by the petitioner to the detaining authority on 23.9.2009 and, therefore, the aforesaid decision of the Supreme Court does not apply to the present case.
9. The allied contention now raised by the learned Senior Counsel is only stated to be rejected. According to the learned Senior Counsel the representation has been sent on 23.9.2009 and as per the acknowledgment produced by him as seen from the typed set of papers, the said representation was received by the detaining authority, namely, the Commissioner of Police on 29.9.2009, after the order of detention. Therefore, the question of consideration of pre-detention representation does not arise in the present case. Moreover, the decision relied on by the learned Senior Counsel in HCP.No.1295 of 1998 will not be applicable to the facts of the present case inasmuch as in the said case the representation dated 22.7.1998 was received by the detaining authority on 28.7.1998 and the order of detention came to be passed on 1.8.1998 and in such circumstances the Division Bench had allowed the petition, whereas in the present case the order of detention came to be passed before the receipt of the representation. In the other decision relied on by the learned Senior Counsel in Sarputhin case, the decision of the Supreme Court in 1994 Supp (1) SCC 62 (cited supra) had not been considered and, therefore, with respect we are not relying upon the said Division Bench decision.
10. The next contention raised on behalf of the petitioner is that the representation dated 2.10.2009 was not considered and therefore the order of detention is liable to be set aside. In order to appreciate this contention, we have gone through the materials placed before us and the counter affidavit filed by the respondents. In para 6 of the counter affidavit it has been stated clearly that the representation of the petitioner has been considered by the detaining authority and therefore there is no question of non-consideration of the representation. The said fact is also affirmed by the materials placed before us. Therefore, the second contention fails and the same is liable to be rejected.
11. The next contention is that though in para 4 of the grounds of detention the detaining authority has averred that in similar cases bails are granted, no material has been placed to come to the aforesaid conclusion. In support of such contention learned Senior Counsel has relied upon the decision of a Division Bench of this Court in HCP.No.870 of 2009 (Ramesh v. The Secretary to Government, Home, Prohibition and Excise Department and another).
12. We have gone through the grounds of detention and, admittedly, the detaining authority has not given any details about the similar case in which bails are granted by the courts. We have gone through the decision relied on by the learned Senior Counsel. In that case the order of detention was passed against the person detaining him as a Goonda and further in the said order the nature of offences in the ground case as well as the adverse case were not narrated. Moreover, the petitioner has not made any specific request for furnishing details of such similar cases, though he had made several representations to the detaining authority as well as to other authorities. In the present case, the detenu has been detained under the Act as a Black-marketer for an offence of smuggling 55 bags of PDS rice meant for distribution to the public and having three adverse cases wherein in one of the cases registered in Cr.No.551/2009 the allegation was that the detenu has smuggled 386 bags of PDS raw rice and 59 bags of PDS boiled rice. In such circumstances, with respect, we do not think that the decision relied on by the learned Senior Counsel can be applied to the facts of the present case and, the contention of the learned Senior Counsel in this regard is rejected.
13. The fourth contention of the learned Senior Counsel is to the effect that at para 4 of the grounds of detention, the detaining authority has referred to Crime No.480 of 2009, whereas there is no such crime number in which the detenu was detained. Therefore, the order of detention passed mechanically by the detaining authority is liable to be set aside.
14. In so far as this contention is concerned, the learned Addl. Public Prosecutor has stated that while drafting the grounds of detention a mistake had inadvertently crept in and the crime number has been wrongly mentioned as 480/2009 instead of 553/2009 in the English version, but in page No.6 of the Tamil version the Crime Number is correctly mentioned as 553/2009 and, therefore, no prejudice has been caused to the detenu and the order of detention does not suffer from infirmity.
15. It is true that in the English version of the grounds of detention the crime number has been wrongly mentioned inasmuch as instead of 553/2009 it was mentioned as 480/2009. As rightly submitted by the learned Addl. Public Prosecutor in the Tamil version, the language known to the detenu, the crime number has been clearly described. We have perused the representations sent by the petitioner. In the said representations sent by the petitioner to different authorities the crime numbers have been correctly described as 553/2009 and not 480/2009 and, therefore, the wrong description of the crime number has not caused any prejudice to the petitioner in making the effective representation. Hence, the aforesaid contention is also liable to be rejected.
16. The next contention raised by the learned Senior Counsel is to the effect that since only the grounds of detention dated 3.10.2009 alone was served on the detenu, it must be taken that no order of detention has been passed.
17. Learned Addl. Public Prosecutor by denying the aforesaid contention has submitted that the order of detention was served by the Addl. Superintendent of Prisons, on the very same day when the order of detention was passed i.e., 28.9.2009 and produced copies of the order of detention before this Court.
18. We have perused the copies of the order of detention served on the detenu before the Addl. Superintendent of Prisons. In the backside of the order of detention, the affixed seal reveals that the detenu by putting his signature had written the date on his own hand as 28.9.2009 and, therefore, we are not in a position to accept the contention raised by the learned Senior Counsel in this regard.
19. The last contention raised by the learned Senior Counsel is that there is no material on record to come to the conclusion that the seized rice comes under the PDS.
20. In order to appreciate such contention, we have gone through the booklet furnished by the learned Senior Counsel. Page No.90 of the booklet contains the qualify certificate wherein the Deputy Manager has confirmed that the rice seized was PDS rice. Therefore, once again we are unable to accept the contention of the learned Senior Counsel and the said contention is rejected.
21. At the time of hearing of the petition, learned Senior Counsel appearing for the petitioner has contended that the order of detention is vitiated on the ground of non-application of mind since the authority has not considered the fact that the detenu had not moved any bail application in the ground case and there was no possibility of the detenu coming out on bail as he was in remand in connection with the adverse cases for offence of similar nature. In support of the aforesaid contention, learned Senior Counsel has relied upon a decision of the Honourable Supreme Court in (2006) 3 SCC (Cri) 324 (A. GEETHA v. STATE OF TAMIL NADU AND ANOTHER) and a decision of this Court reported in 2008(3) CTC 738 (MANNU v. SECRETARY TO GOVERNMENT, HOME, PROHIBITION AND EXCISE DEPARTMENT AND ANOTHER).
22. Learned counsel for the respondents has placed strong reliance upon the decisions of the Supreme Court reported in (2006) 3 SCC (Cri) 17 (IBRAHIM NAZEER v. STATE OF TAMIL NADU AND ANOTHER), (2006) 3 SCC (Cri) 50 (SENTHAMIL SELVI v. STATE OF TAMIL NADU AND ANOTHER) and also the decision relied on by the learned Senior Counsel in (2006) 3 SCC (Cri) 324 (A. GEETHA v. STATE OF TAMIL NADU AND ANOTHER).
23. In (2006) 3 SCC (Cri) 17 (IBRAHIM NAZEER v. STATE OF TAMIL NADU AND ANOTHER), the detention was under COFEPOSA Act. The only contention was to the effect that the High Court was not justified in upholding the conclusion of the detaining authority regarding imminent possibility of the detenu coming out on bail, more particularly when the detenu had not filed any bail application after withdrawal of the first bail application. The Supreme Court observed:- "7. It has to be noted that whether prayer for bail would be accepted depends on the circumstances of each case and no hard-and-fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be an ipse dixit of the detaining authority. On the basis of materials before it, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with. On the facts of the case, the detaining authority has indicated as to why he was of the opinion that there is likelihood of the detenu being released on bail. It has been clearly stated that in similar cases, orders granting bail are passed by various courts. The appellant has not disputed the correctness of this statement. Strong reliance was placed by learned counsel for the appellant on Rajesh Gulati v. Govt. of NCT of Delhi. The factual scenario in that case was entirely different. In fact, five bail applications filed had been already rejected. In that background this Court observed that it was not a "normal" case. The High Court was justified in rejecting the stand of the appellant." (Emphasis added)
24. In (2006) 3 SCC (Cri) 324 (A. GEETHA v. STATE OF TAMIL NADU AND ANOTHER), thedetenu was detained under Section 3(2) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982, on the allegation that detenu was indulging in immoral trafficking. In the appeal, conclusion about the imminent possibility of being released on bail was under challenge. The Supreme Court made similar observations.
25. Similar observations were also made in (2006) 3 SCC (Cri)50 (SENTHAMILSELVI v. STATE OF TAMIL NADU AND ANOTHER).
26. A careful reading of these decisions indicates that conclusion of the detaining authority regarding imminent possibility of being released on bail was based on materials and as such was not liable to be interfered with as conclusion of the detaining authority on the basis of materials on record regarding imminent possibility of coming out on bail should not be interfered with. At the same time, the Supreme Court emphasised that such conclusion should not be based on the mere ipse dixit of the detaining authority, but on the other hand should be based on materials on record.
27. In the present case, the detaining authority after going through the reliable materials placed on record had come to a subjective satisfaction that if the detenu comes out on bail he will indulge in such further activities in future as well which will be prejudicial to the maintenance of supplies of commodities essential to the community. The subjective satisfaction of the imminent possibility of coming out on bail depends upon the facts of each case and no hard-and-fast rule can be applied. Therefore, taking into consideration the facts and circumstances of the case and the materials placed before us, we are of the considered opinion that the subjective satisfaction arrived at by the detaining authority regarding the imminent possibility of coming out on bail is not bad to call for any interference.
28. In view of our aforesaid reasons, we do not find any ground to interfere with the order of detention and accordingly, the Habeas Corpus Petition is dismissed.
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