BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29/06/2010
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
and
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
H.C.P.(MD) No.357 of 2010
Paritha .. Petitioner
vs
1.The Additional Secretary,
Government of India,
Ministry of Consumer Affairs,
Food and Public Distribution
(Department of Consumer Affairs),
Room No.270, Krishi Bhavan,
New Delhi - 110 001.
2.The Secretary,
Government of Tamilnadu,
Co-operation, Food and Consumer
Protection Department,
Secretariat, Chennai - 9.
3.The Commissioner of Police
Tiruchirapalli City,
Tiruchirapalli.
4.The Inspector of Police,
CS.CID, Madurai. .. Respondents
Petition filed under Article 226 of the Constitution of India to issue a
Writ of Habeas Corpus to call for the records pertaining to the order of
detention passed by the third respondent in his proceedings
C.P.O./T.C./I.S/B.M.D.O.No.01/ 2010(CS) dated 01.04.2010 and quash the same as
illegal and produce the detenu, namely, G.Babu @ Baburaj, S/o. Gani, aged 28
years, who has been confined in Central Prison, Trichy before this Court and set
him at liberty.
!For petitioner ... Mr.T.Lenin Kumar
^For 1st respondent ... Mr.A.John Xavier,
Central Government
Standing Counsel
For 2nd respondent ... Mr. M.Daniel Manoharan
Addl.Public Prosecutor
:ORDER
(Order of the Court was made by M.CHOCKALINGAM, J)
This Writ Application challenges an Order of Detention of the third
respondent made in C.P.O./T.C./I.S/B.M.D.O.No.01/2010 dated 01.04.2010 whereby
the husband of the petitioner, by name, G.Babu @ Baburaj, was ordered to be
detained under the provisions of the Prevention of Black Marketing and
Maintenance of Supplies of Essential Commodities Act, 1980 (Act No.7 of 1980)
branding him as a “Black Marketer”.
2. The Court heard the learned counsel appearing for the petitioner and
looked into all the materials available, in particular, the order under
challenge.
3. The detenu was involved in two adverse cases as follows:
SlNo Police Station Section of law
Cr.No. & Date
1 Tiruchirappalli u/s.6(4) of TNSC (RDCS) Order 1982
CSCID r/w 7(1)(a)(ii) of E.C.Act 1955
Cr.No.88/2010
2 Tiruchirappalli u/s.6(4) of TNSC (RDCS) Order 1982
CSCID r/w 7(1)(a)(ii) of E.C.Act 1955
Cr.No.134/2010
Apart from that, the detenu was involved in one ground case case registered by
Tiruchirappalli Civil Supplies CID, in Crime No.153/2010 under Section 6(4) of
TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C.Act 1955 on 20.3.2010, when the
detenu was found in possession of 50 bags each containing 50 kgs of rice meant
for Public Distribution System. It is not in controversy that pursuant to the
recommendation made by the sponsoring authority that the detenu was involved two
adverse cases and also in one ground case as referred to above, after looking
into the materials available, the detaining authority recorded its subjective
satisfaction that the activities of the detenu is prejudicial to the maintenance
of supplies of commodities essential to the community and accordingly, made the
order of detention, which is the subject matter of challenge before this Court.
4. Advancing the arguments on behalf of the petitioner, the learned
counsel for the petitioner urged the following grounds:-
(i) In both the adverse cases and in the ground case, no bail application
was filed but the detaining has stated that there was a real possibility of the
detenu coming out on bail. This observation was made without any basis or
material muchless cogent material. Under the circumstances, the order of
detention is infirm.
(ii) Added further the learned counsel that insofar as two adverse cases
are concerned, copy of the arrest memos was not supplied and even in the
representation made it was pointed out, and despite the same, till this day,
those documents have not been served on the detenu. Hence, on these two
grounds, the order of detention has got to be set aside.
5. The Court heard the learned Additional Public Prosecutor for the State
on the above contention.
6. Admittedly, pursuant to the recommendation made by the sponsoring
authority that the detenu was involved in two adverse cases and in one ground
case as referred to above, the order of detention came to be passed against the
detenu branding him as a “black marketer”.
7. As rightly pointed out by the learned counsel for the petitioner, it is
an admitted position that no bail application was filed either in the adverse
cases or in the ground case. However, paragrah No.5 of the order reads as
follows:
“5. I am aware that Thiru.G.Babju @ Baburaj is in remand in
Tiruchirappalli, Civil Supplies CID., Cr.Nos.88/2010, 134/2010 and 153/10 and he
has not moved any bail application for above cases. His wife Tmt. Paritha
stated before the Inspector of Police, Civil Supplies CID., Tiruchirappali that
she will take her husband on bail. There is a real possibility of coming out on
bail in these cases by filing bail application. If he comes out on bail he will
indulge in future activities which will be prejudicial to the Maintenance of the
Public Distribution System. …”
8. From the very reading of above, it would be quite clear that when no
bail application was filed in any one of the three cases, the detaining
authority has stated that there was a real possibility of the detenu coming out
on bail.
9. At this juncture, learned Additional Public Prosecutor for the State
would reply that a statement of the wife of the detenu, who is the petitioner
herein, was actually recorded where it would be quite clear that she was taking
steps to move for bail.
10. In the instant case, that cannot be the material which can be relied
on by the detaining authority to arrive at subjective satisfaction, for the
simple reason that on the day when the order came to be passed on 1.4.2010, not
even a bail application was filed or was pending in any one of the three cases.
11. Apart from that, it is needless to say that, in order to satisfy the
legal requirement, copy of the arrest memos which were the relied on documents
in this case, should have been supplied but not supplied, which would make the
order defective. On both the grounds, the order of detention is liable to be
set aside.
12. Accordingly, the impugned order of detention is set aside. The detenu
is directed to be set at liberty forthwith unless his presence is required in
connected with any other case. The Habeas Corpus Petition is allowed.
asvm
To
1.The Additional Secretary,
Government of India,
Ministry of Consumer Affairs,
Food and Public Distribution
(Department of Consumer Affairs),
Room No.270, Krishi Bhavan,
New Delhi – 110 001.
2.The Secretary,
Government of Tamilnadu,
Co-operation, Food and Consumer
Protection Department,
Secretariat, Chennai – 9.
3.The Commissioner of Police
Tiruchirapalli City,
Tiruchirapalli.
4.The Inspector of Police,
CS.CID, Madurai.
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.