A.Murugesan v. The Secretary to Government Food, Co-Operation and ConsumerProtection Department

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12-10-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHHCP No.1109 of 2009A.Murugesan.. Petitionervs1.The Secretary to Government Food, Co-Operation and ConsumerProtection Department Fort St. George, Chennai 600 009.2.The District Collector and the District Magistrate Salem District, Salem.3.The Additional Secretary to Government of India Ministry of Consumer Affairs, Foodand Public Distribution Department of Consumer Affairs Government of India (Room No.270), Krishi Bhavan New Delhi 110 001... RespondentsHabeas corpus petition filed under Article 226 of theConstitution of India praying for a writ of habeas corpus calling forthe records in connection with the order of detention passed by thesecond respondent dated 27.6.2009 in C.M.P.No.16/PBMMSEC Act/2009(J3)against the detenu Kamaraj, aged about 43 years, S/o.VeerappaMudaliar, who is confined in Central Prison, Salem, and set aside thesame and direct the respondents to produce the detenu before thisCourt and set him at liberty.For Petitioner: Mr.A.K.S.ThahirFor Respondents: Mr.Babu Muthu Meeran Additional Public Prosecutor for RR1 & 2 Mr.M.Devendran SPCCG for R3 https://hcservices.ecourts.gov.in/hcservices/ ORDER(Order of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to an order of the first respondent dated27.6.2009 whereby one Kamaraj, son of Veerappa Mudaliar, the nephewof the petitioner herein was ordered to be detained under theprovisions of the Prevention of Blackmarketing and Maintenance ofSupplies of Essential Commodities Act 1980 as a Black Marketeer. 2.The Court heard the learned Counsel for the petitioner and allthe materials and in particular the order under challenge are lookedinto.3.Admittedly, pursuant to the recommendations made by thesponsoring authority that the said detenu was involved in fouradverse cases namely (i) Salem Civil Supplies Criminal InvestigationDepartment Crime No.348/2007 dated 3.7.2007 under Sec.6(4) of TNSC(RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act1955; (ii) Salem Civil Supplies Criminal Investigation DepartmentCrime No.352/2007 dated 5.7.2007 under Sec.6(4) of TNSC (RDCS) Order1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955; (iii)Salem Civil Supplies Criminal Investigation Department CrimeNo.38/2008 dated 10.1.2008 under Sec.6(4) of TNSC (RDCS) Order 1982read with 7(1)(a)(ii) of Essential Commodities Act 1955 and (iv)Salem Civil Supplies Criminal Investigation Department CrimeNo.39/2008 dated 10.1.2008 under Sec.6(4) of TNSC (RDCS) Order 1982read with 7(1)(a)(ii) of Essential Commodities Act 1955 and he wasalso found in possession of 2500 kgs. of PDS Rice on 22.6.2009, and acase came to be registered in Salem Civil Supplies CriminalInvestigation Department Crime No.298/2009 under Sec.6(4) of TNSC(RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act1955 and 307 of IPC, the detaining authority after going through thematerials, recorded its subjective satisfaction that it is a fit casewhere he should be detained under the Act since his activities weredetrimental and prejudicial to the public distribution system, andaccordingly an order came to be made. 4.Advancing arguments on behalf of the petitioner, the learnedCounsel would submit that a perusal of the order under challengewould indicate that four adverse cases were actually registeredagainst him; that out of these four cases referred to above, in threecases, quality certificates were not obtained; that all these casesended either in admonition or in imposition of fine; that in no pointof time, he was sentenced to imprisonment; and that there is nothingto indicate that he has been dealing with the same or his activitieswere prejudicial to the public distribution system. 5.Added further the learned Counsel that a perusal of the orderwould indicate that at one place it is stated that the said detenuhas hoarded and removed the rice intended for the card holders; but,inconsistently it is found in the other place that he was illegallypurchasing the public distribution system rice from the card holders,and thus the sponsoring authority has placed the materials oneindicating that he has been hoarding and removing the rise intendedfor the PDS, while the other indicating that he has purchased the https://hcservices.ecourts.gov.in/hcservices/ same illegally; and that under the circumstances, the detainingauthority should have called for a clarification but failed to do so. 6.Added further the learned Counsel that the detaining authorityhas pointed out in its order that he has not made any bailapplication in Crime No.298/2009, but has observed that if he comesout on bail, he is likely to indulge in such activities, and underthe circumstances he should be detained. 7.Added circumstance by which according to the learned counselthe order would suffer, is that a pre-detention representation wasmade on 3.3.2009 apart from two other representations already made;but, no one of the representations was actually considered despiteacknowledgement made by the authority, and under the circumstances,all would suffice to set aside the order.8.The Court heard the learned Additional Public Prosecutor forthe respondents 1 and 2 and also the learned Counsel for the thirdrespondent and paid its anxious consideration on the submissions made.9.It is not in controversy that pursuant to the four adversecases referred to above and one ground case in Crime No.298/2009,registered by Salem Civil Supplies Criminal Investigation Departmentthat he was found in possession of 2500 kgs. of PDS rice and also onthe recommendation, the detaining authority thought it fit that heshould be detained after recording its subjective satisfaction thathis activities were prejudicial to the public distribution system.On scrutiny of the entire materials and hearing the submissions made,this Court is of the considered opinion that the order suffers in themanner as follows. 10.A perusal of the order would indicate that the sponsoringauthority has placed the materials indicating that he has beenhoarding and removing the rice and thus he has been stealing. On thecontrary, the observation made by the authority at the end ofparagraph 5 of the order would indicate that he has purchased PDSrice from the card holders illegally. It is abundantly clear thatthere were two things, one to say that he has been hoarding orremoving and the other to say that he was actually purchasingillegally, and both cannot go together. While such a recommendationwas made, a duty was cast upon the detaining authority to call for anexplanation, but miserably failed to do so. 11.Apart from the above, in the instant case, it is an admittedposition that he has not made any bail application before any Courtof criminal law in Crime No.298/2009 and the same is also recorded bythe detaining authority. But, at the same time, the authority wouldfurther add that bail was likely to be granted, and if he is let atlarge, his activities would be prejudicial to the public distributionsystem. While not even a bail application was filed before a Courtof criminal law, it would be too early for the authority torecord that he is likely to come out on bail either, or if he is letto remain at large, he will indulge in such activities in futurewhich would be prejudicial to the maintenance of supplies ofcommodities essential to the community. This would be indicative ofthe non-application of mind, and it is only an expression of the https://hcservices.ecourts.gov.in/hcservices/ impression made by the authority without any material, much lesscogent material whatsoever. Under the circumstances, the order wouldsuffer in the above grounds. The contention put forth by the learnedCounsel for the petitioner that in four adverse cases, he was eitheradmonished or actually fined cannot be a reason to set aside theorder. But, on the two grounds mentioned above, the order is liableto be set aside.12.Accordingly, this habeas corpus petition is allowed settingaside the order of the first respondent. The detenu is directed tobe set at liberty forthwith unless his presence is required inconnection with any other case.nsv/ Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1. The Secretary to Govt., Food, Co-Operation and Consumer Protection Dept., Fort St., George, Chennai 600 0092. The District Collector & District Magistrate, Salem Districgt, Salem.3. The Addl. Secretary to Government of India, Ministry of Consumer Affairs, Food & Public Distribution Dept., of Consumer Affairs, Govt. of India, (Room No.270) Krishi Bhavan, New Delhi 110 001.4. The Superintendent, Central Prison, Salem.5. The Public Prosecutor, High Court, Madras 104.+ 1 cc to Mr.A.K.S. Thahir, Advocate SR.53028+ 1 cc to Mr.M.Devendran, Advocate SR.53079.HCP No.1109 of 2009PA(CO)EU 26.10.2009.