P.Latha v. The Secretary to Government Cooperation, Food and Consumer Protection Department Secretariat & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14.09.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHHCP No.1020 of 2009P.Latha..PetitionerVs1.The Secretary to Government Cooperation, Food and Consumer Protection Department Secretariat, Chennai 600 009.2.The District Collector and District Magistrate of Erode District, Erode.3.The Additional Secretary to Government of India, Ministry of Consumer Affairs, Food and Public Distribution, (Department of Consumer Affairs), Room No.270, Krish Bhavan, New Delhi – 110 001.. Respondents Habeas corpus petition filed under Article 226 of theConstitution of India praying for a writ of habeas corpus calling forthe records relating to the order of detention passed by the 2ndrespondent in C.No.2/PBMMSEC ACT/2009 (M3) dated 8.6.2009 against thepetitioner's husband K.Panneerselvam, son of Karuppannan aged about47 years, who is confined at Central Prison, Coimbatore and set asidethe same and direct the respondents to produce the detenu before thisCourt and set him at liberty.For Petitioner: Mr.V.PaarthibanFor Respondents: Mr.Babu Muthu Meeran Additional Public Prosecutor for R1 & R2. Mr.G.Gurulingam,S.C.G.S.C. for R3. https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Order of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to an order of the second respondent made inC.No.2/PBMMSEC ACT/2009 (M3) dated 8.6.2009 whereby the husband ofthe petitioner namely K.Panneerselvam was ordered to be detainedunder the provisions of the Prevention of Black Marketing andMaintenance of Supplies of Essential Commodities Act, 1980 brandinghim as a black marketeer.2. The affidavit in support of the petition along with all thematerials including the order under challenge are perused. The Courtheard the learned counsel for the petitioner.3. Concededly, the order under challenge came to be passed on8.6.2009 pursuant to the registration of two adverse cases namely(i) Erode Civil Supplies CID, Crime No.517/2008 dated 9.6.2009 u/s 6(4) of TNSC (RDCS) order 1982 r/w Sec.7(1)(a)(ii) of E.C. Act, 1955for alleged possession of 60 bags of PDS rice weighing 50 kgs each(ii) Erode Civil Supplies CID, Cr.No.785/2009 dated 22.8.2009 u/s 6(4) of TNSC (RDCS) order 1982 r/w Sec. 7(1)(a)(ii) of E.C. Act,1955for alleged possession of two bags weighing 50 kgs each and also aground case in Crime No.201/2009 Civil Supplies C.I.D., Erode u/s 6(4) of TNSC (RDCS) order 1982 r/w 7(i)(a)(ii) of EC Act 1955 for thealleged possession of 52 bags of PDS rice each containing 50 kgs. Therice bags were placed for analysis and it was also confirmed that itwas PDS rice. All the materials pursuant thereto were placed beforethe Board. On scrutiny of the materials available, the detainingauthority was satisfied that the activities of the detenu wereprejudicial to the public distribution system and hence, in order toprevent him from indulging in such activities, an order of detentionhas got to be made under the provisions of the Act, and accordingly,made the order which is the subject matter of challenge in thispetition.4. Advancing the arguments on behalf of the petitioner, thelearned counsel in his sincere attempt of assailing the order underchallenge made the following two submissions. Firstly, when a personwas arrested, the law would require to intimate as to the place,time and the purpose for which he was arrested should be made knownto his relatives, but as could be seen from the available materials,it does not contain either the time of arrest or under whatprovision he was arrested. It is alleged that a message was actuallygiven to the paternal uncle of the detenu by name one Arumugamthrough cell phone. It is quite clear from Page No.53 of the bookletthat it does not contain necessary particulars as expected to bedone. Secondly, the case of the department was that a detailedtelegraphic message was sent to Smt.Latha, wife of the detenuPanneerselvam but it was not an authenticated copy or a certifiedcopy. Thus, in the absence of any proof, the above communicationcannot be given any credence. Hence, it would be quite clear thatimmediately after the arrest, it has not been properly informed to https://hcservices.ecourts.gov.in/hcservices/ the relatives of the detenu. Hence, the detention order would suffer. 5. Added further learned counsel, in the instant case, the bailapplication was actually made and it was also dismissed on 5.6.2009.The order of detention came to be passed on 8.6.2009 in which thedetaining authority has pointed out that " I am also aware thatthere was real possibility of his coming out on bail by filing bailapplication for the above case before the same court or HigherCourt." It was without cogent material whatsoever and it was only anapprehension in the mind of the authority. Therefore, for all theabove reasons, the detention order would suffer and the detentionorder has got to be set aside. 6. The Court heard the learned counsel for the State on theabove contentions.7. On scrutiny of the entire materials available, the Court isable to see force in the contention putforth by the learned counselfor the petitioner. It is not in controversy that the detainingauthority, after recording the subjective satisfaction that theactivities of the detenu were prejudicial to the Public DistributionSystem, since he had involved in two adverse cases and one groundwherein he was found in possession of 52 bags of PDS rice, hadpassed the order of detention. It is pertinent to point out that itis mandate in law that immediately after the arrest, the relatives ofthe detenu should be informed about the arrest. The learned counselfor the State took the Court to page No.53 wherein the place and timeof arrest are mentioned and the Inspector, Civil Supplies CID hasalso signed in the intimation. Though it is found that one Arumugam,paternal uncle of the detenu was intimated through his cell phone,the communication did not contain the purpose for which he wasarrested or the provision of law under which he was arrested. Thus,it can be well stated that it is not a sufficient information in theeye of law. The learned counsel for the State also took the Court tothe Telegraphic message alleged to have been given to one Latha, wifeof the detenu. A perusal of the same would indicate that it is not anauthenticated copy or a certified copy from the telegraph department.Hence, no evidentiary value could be attached. In the absence of anyacceptable proof, it cannot be stated that there was any telegraphicmessage given to the wife of the detenu. Under such circumstances, itcan be well stated that no proper intimation or information as to thearrest was given to any of the relatives of the detenu. 8. Equally, it is an admitted position that the bail applicationwas made in Crime No.201/2009 before the Judicial Magistrate-III,Erode in Crl.M.P.No.3925/2009 and the same was dismissed on 5.6.2009but no subsequent application was made or any bail application waspending before the Court of criminal law. While the matter stoodthus, the detaining authority has stated in the order that "I am alsoaware that there was real possibility of his coming out on bail byfiling bail application for the above case before the same court orHigher Court, since in similar cases bails are granted by theconcerned court or Higher courts after lapse of time". This is anexpression of apprehension in the mind of the authority without any https://hcservices.ecourts.gov.in/hcservices/ material whatsoever. In the absence of any cogent material, such anobservation made by the authority, as one of the reasons whichimpelled him to make an order of detention, cannot be accepted.Hence, both the grounds putforth by the petitioner is accepted bythe Court. Hence, the order suffers from infirmity and it is liableto be set aside.9. Accordingly, this habeas corpus petition is allowed settingaside the order of the second respondent. The detenu is directed tobe set at liberty forthwith unless his presence is required inconnection with any other case. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarvsiTo1.The Secretary to Government Cooperation, Food and Consumer Protection Department, Secretariat, Chennai 600 009.2.The District Collector and District Magistrate of Erode District, Erode.3.The Additional Secretary to Government of India, Ministry of Consumer Affairs, Food and Public Distribution, (Department of Consumer Affairs), Room No.270, Krish Bhavan, New Delhi – 110 0014.The Public Prosecutor High Court, Madras.+1 cc to Mr.C.Gurulingam, Advocate, SR.No.47561HCP No.1020 of 2009KSK {CO}TP/30.9.2009.