Vijaya Rani v. The Secretary to Government, Food and Consumer Protection Department, Fort St.George, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 15.09.2009 CoramThe Honourable Mr. Justice M.CHOCKALINGAMandThe Honourable Mr. Justice R.SUBBIAHH.C.P. No.1142 of 2009 Vijaya Rani .. Petitioner / Wife of the Petitioner..vs..

The Secretary to Government, Food and Consumer Protection Department, Fort St.George, Chennai-9.

The Commissioner of Police, Chennai City Sub-Urban Area.

The Secretary to Government, Food and Consumer Protection Department, Government of India, New Delhi... RespondentsPetition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, calling for the records inconnection with the order of detention passed by the 2nd respondentdated 28.06.2009 in Memo No.4/Black Marketing Act/2009 against thepetitioner's husband Saminathan, son of Manthira Nadar, aged about 42years, who is confined at Central Prison, Puzhal, Chennai and setaside the same and direct the respondents to produce the detenubefore this Court and set him at liberty. For Petitioner: Mr.V.PaarthibanFor Respondents: Mr.Babu Muthu Meeran, Addl.P.P., for R1 & R2 Mr.M.Deivendran, Spl.C.C.G., for R3ORDER(Order of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to an order of detention made by the secondrespondent herein dated 28.06.2009 in Memo No.4/Black MarketingAct/2009, whereby the husband of the petitioner one Saminathan wasdetained under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, branding him as a BlackMarketeer. https://hcservices.ecourts.gov.in/hcservices/

2. The Court heard the learned Counsel for the petitioner andlooked into the materials available including the order underchallenge.3. Admittedly, on the recommendations made by the sponsoringauthority that the detenu was involved in three averse cases, namely(1) Civil Supplies CID., Vellore, Crime No.128/2009 dated 21.03.2009under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 for alleged possession of 58 bags eachcontaining 50 kgs.of PDS ration rice; (2) Civil Supplies CID.,Chennai Unit Crime No.272/2009 dated 12.05.2009 under Sec.6(4) ofTNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential CommoditiesAct 1955 for alleged possession of 18 bags each containing 50 kgs.ofPDS ration rice; and (3) Civil Supplies CID., Chennai Unit CrimeNo.320/2009 dated 03.06.2009 under Sec.6(4) of TNSC (RDCS) Order 1982read with 7(1)(a)(ii) of Essential Commodities Act 1955 for allegedpossession of 32 bags each containing 50 kgs. of PDS ration rice andalso a ground case in Crime No.356/2009 registered by the CivilSupplies, CID., Chennai Unit under Sec.6(4) of TNSC (RDCS) Order1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 and Sections 403, 336 and 307 IPC, stating that on 20.06.2009 at about15.00 hours, the detenu was found in possession of 65 bags eachcontaining 50 Kgs. of PDS rice and the case came to be registered inthe above crime number. On perusal and scrutiny of the materialsavailable, the detaining authority also recorded its subjectivesatisfaction that it was a fit case where he has got to be branded asa black marketeer since his activities were prejudicial to the publicdistribution system, and hence there arose necessity to make an orderof detention as referred to above and, accordingly, made the order, which is the subject matter of challenge in this petition.

The learned Counsel while advancing arguments on behalf ofthe petitioner, raised two points; firstly, according to the department, he was found inpossession of 65 bags each containing 50 kgs.of PublicDistribution System rice on 20.06.2009 and a case came to beregistered in Crime No.356 of 2009. It is found from thematerials, he was actually found in possession of PDS riceat 3.00 PM and a mahazar came to be prepared at 4.10 PM andthereafter, he was taken to the police station and a casecame to be registered in Crime No.356 of 2009 under theprovisions of the said Act. If it was taken so, the mahazar, which was prepared at the place of interception and recoveryof Public Distribution System rice, could not contain thecrime number. But the Crime Number came into existence inthe recovery mahazar, even prior to the registration of thefirst information report and actual arrest of the detenu. The Detaining Authority had failed to notice this vital flawand therefore, he did not get a clarification from the Sponsoring Authority; andsecondly, when the arrest was on 20th June, 2009 andpursuant to the registration of Crime No.356 of 2009 by the Civil Supplies, C.I.D., Chennai, he was produced before the Judicial Magistrate concerned and the remand was extendedtill 02.07.2009; but when the papers were placed before the https://hcservices.ecourts.gov.in/hcservices/ detaining authority, it was shown as if he was remanded till03.06.2009. This shows, either the records were not properlyplaced by the sponsoring authority or the detainingauthority has not scrutinized them properly. This would beindicative of the non-application of mind, which wouldprejudice to the interest of the detenu and hence, the orderhas got to be set aside.

The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.

It is not in controversy that pursuant to the recommendationsmade by the sponsoring authority, the second respondent-detainingauthority made the detention order under challenge on 28.06.2009.Admittedly, three Adverse cases and one ground case were noticed andrecorded. As could be seen from the records available, a case undersection 356 of 2009 was registered by the Civil Supplies, C.I.D.,Chennai at about 5.30 pm in C.B., C.I.D., Police Station at Chennaiand it could be further seen that the detenu was intercepted at about3.10 pm and the recovery of the PDS rice was made and a mahazar wasalso prepared at about 4.10 pm. If really the recovery mahazar wasprepared at 4.10 pm and a case was registered only at 5.30 pm, therecovery mahazar could not have contained the crime No.356 of 2009and under such circumstances, the detaining authority should havecalled for a clarification from the sponsoring authority, but notdone so.