IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:09.07.2009 CORAM: THE HON'BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON'BLE MR.JUSTICE C.S.KARNAN HCP.No.723 of 2009 J.Bhasker ...Petitioner Vs. 1. The Secretary to Government, Food and Consumer Protection Department, Chennai 9. 2. The Commissioner of Police, Chennai City Sub Urban Area. 3. The Secretary to Government, Food and Consumer Protection Department, Government of India, New Delhi. ...Respondents Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus directing the respondents to produce the detenu Paulraj, Son of Jabamani aged 23 years who is detained in Central Prison, Puzal, Chennai in pursuance of detention order dated 23.4.2009 in Memo No.2/Black Marketing Act/2009 before this Court to call for the records, set aside the order and set the detenu at liberty forthwith. For petitioner: Mr.V.Parthiban For Respondents: Mr.N.R.Elango, A.P.P. Mr.A.S.Vijayaraghavan,ACGSC for R3 O R D E R
(Order of the Court was made by M.CHOCKALINGAM,J)
Challenge is made to the order of the second respondent made in Memo No.2/Black Marketing Act/2009 dated 23.4.2009 whereby the brother of the petitioner one Paulraj was ordered to be detained under the provisions of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 branding him as a black marketeer.
2. The affidavit in support of the petition along with all the materials including the order under challenge are perused. The Court heard the learned Counsel for the petitioner.
3. Admittedly, pursuant to the recommendation made by the sponsoring authority that two adverse cases (1) registered by the Civil Supplies CID Chennai in Crime No.1848/2008 under Section 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955 for the allegation that the detenu was found in possession 25 bags each containing 50 kgs of PDS ration rice (2) registered by the Civil Supplies CID Chennai in Crime No.174/2009 under Section 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955 for the allegation that the detenu was found in possession 80 bags each containing 50 kgs of PDS ration rice and one ground case registered in Crime No.218/2009 by Civil Supplies Central Investigation Department under sections 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955 and 403, 332 and 307 IPC for the allegation that on 15.4.2009 at 11.00 hours when the Inspector of Police along with the police party made an inspection at Kallikuppam area near Ambattur, they found the detenu arranging the bags in rows near Kallikuppam bus stand and on noticing the police party the detenu tried to escape. The police rushed to apprehend him, at that time, the detenu took an iron rod and tried to attack the police but he was surrounded by the police and was arrested. The detenu was found in possession of 50 bags each containing 50 kgs of P.D.S. Rice. On scrutiny of the materials, the detaining authority, after recording the satisfaction that the activities of the detenu were prejudicial to the public distribution system and hence, in order to prevent him from indulging in such activities, an order of detention has got to be made under the provisions of the Act, and accordingly made the order which is the subject matter of challenge in this petition.
4. While assailing the order under challenge, the learned counsel for the petitioner made the following two points.
(a) Firstly, the order of detention came to be passed on 23.4.2009 and the post detention representation was sent to the Central Government on 30.4.2009 and the telegraphic message of rejection was served upon the detenu on 17.6.2009 and the same would clearly indicate that it was only an intimation but it did not contain the order of rejection at all and the detenu was unable to understand whether the representation made by him was considered properly and whether the order was passed on merits or not. Thus, the order would suffer from infirmity.
(b) Secondly, the occurrence has taken place on 15.4.2009 when the detenu was alleged to have been in possession of 50 bags of PDS rice and he was arrested on the same day. The recovery mahazar was prepared on 12.15 hours as found in Page No.38 of the booklet but thereafter he taken to the police station and a case came to be registered in Crime No.218 of 2009 at 2.00 p.m. But in the recovery mahazar as found in page No.38, it appears that it contains the crime number as ‘Cr.No.218/09’ and it could not have happened at all. If to be so, the detaining authority should have called for clarification but failed to do so. Hence, on that ground the order would suffer. Thus, the order is infirm and it has got to be set aside.
5. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
6. As stated above, the order under challenge came to be passed on 23.4.2009 on the strength of the recommendation made by the sponsoring authority that he had indulged in two adverse cases and one ground case in Crime No.218/2009 registered by the Civil Supplies,Madras where he was found in possession of 50 bags of PDS rice. It is not in controversy that post detention representation was made by the detenu on 30.4.2009 but the same was rejected on 17.6.2009 and as could be seen from the available materials and as rightly pointed out by the learned counsel for the petitioner, a telegraphic communication was served upon the detenu and on that, an order of rejection came to be made and it would be quite clear from a perusal of the document that it was only an intimation and not an order of rejection. So long as the order of rejection was not served upon the detenu, it could not be understood whether the representation was considered properly and whether the speaking order on merits of the matter was passed. Mere service of intimation of rejection of the representation would not be suffice as law would require speaking order of rejection. Under such circumstances, the order would suffer on that ground also and the same has got to be set aside.
7. Equally, the order suffers on the next ground also. Admittedly, a case came to be registered by the Madras Civil Supplies Central Investigation Department in Crime No.218/2009 on 15.4.2009. From the materials available, it is seen that the detenu was found in possession of 50 bags of PDS rice at about 12.15 hours and it was seized under a cover of mahazar as found in page 38. The detenu was arrested and was taken to the police station and a case came to be registered in Crime No.218 of 2009 at 2.00 p.m. But on a perusal of the seizure mahazar which was actually prepared at 12.15 hours it contained Crime number. If really the seizure mahazar as found in page 38 was prepared at 12.15 hours, at the time and place 50 bags of PDS rice was seized from the detenu, then it could not contain the crime number. But as could be seen from the seizure mahazar at Page 38 it contain the crime number. Under such circumstances, the detaining authority should have called for clarification and duty was cast upon him to do so but he failed to so. Thus, he has not scrutinised the documents proper. Therefore, the Court is of the opinion that on the above said grounds, without hesitation, the order of detention has got to be set aside.
8. Accordingly, this habeas corpus petition is allowed setting aside the order of the second respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.
(M.C.,J) (C.S.K.,J)
09.07.2009
Index:Yes/No
Website:Yes/No
Vsi
To
1. The Secretary to Government,
Food and Consumer Protection Department,
Chennai 9.
2. The Commissioner of Police,
Chennai City Sub Urban Area.
3. The Secretary to Government,
Food and Consumer Protection Department,
Government of India,
New Delhi.
M.CHOCKALINGAM.,J.
and
C.S.KARNAN.,J.
Vsi
HCP.No.723 of 2009
09.07.2009