High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 28.02.2007CoramTHE HONOURABLE MR. JUSTICE P.K.MISRAANDTHE HONOURABLE MR. JUSTICE K.MOHAN RAMHABEAS CORPUS PETITION No.1221 of 2006Anandan.... Petitioner-Vs.-1. The Secretary to The Government Food, Co-Operation and Consumer Protection Department, Chennai – 600 009.2. The District Magistrate and District Collector, Dharmapuri District, Dharmapuri3. The Secretary to the Government, Food and Consumer Protection Department, Government of India, New Delhi .... RespondentsPetition filed under Article 226 of the Constitution of India praying forthe issuance of a writ of Habeas Corpus to call for the records inconnection with the order of detention passed by the second respondentdated 15.11.2006 in S.C.No.(CS) 8 of 2006 against the petitioner's friendMurugan, son of Chinna Kannan, aged about 35 years, who is confined atCentral Prison, Salem and set-aside the same and direct the respondents toproduce the detenu before this Court and set him at liberty. For Petitioner :Mr. C.Prakasam. For Respondents:Mr. M.Babu Muthu Meeran, A.P.P. for R1 and R2Mr.P.Kumaresan ACGSC for R3O R D E R(Order of the Court was made by K.Mohan Ram, J.)Heard the learned counsel for the petitioner and the learnedAdditional Public Prosecutor for the respondents. https://hcservices.ecourts.gov.in/hcservices/

2. The order of preventive detention detaining the detenu as a BlackMarketer as contemplated under Sections 3(2)(a) read with Section 3(1) ofthe Prevention of Black Marketing and Maintenance of Supplies of EssentialCommodities Act, 1980 is challenged in the above Habeas Corpus Petition.3. Even though several contentions have been raised, we are taking upfor consideration the contention relating to a glaring discrepancyregarding which there is no explanation.4. The learned counsel for the petitioner contended that theobservation mahazar, which was prepared at 8.00 am on 02.11.2006 containsdetails of the provisions under which the case has been registered againstthe detenu namely, under Section 6(4) of TNSC (RDCS) order 1982 read with7(1)(a)(ii) of Essential Commodities Act 1955 and Section 414 of theIndian Penal Code and the crime number viz., Krishnagiri Civil SuppliesC.I.D. Crime No.625 of 2006. According to the learned counsel, furnishingof the crime number in the observation mahazar is not possible, as by thenthe information regarding the commission of the offence had not reachedthe Police Station and no crime had been registered at the Police Station.In fact, from the First Information Report which is available, it is clearthat the crime was registered at 11.00 am on 02.11.2006 only and obviouslythe crime number could have been given only at that stage and not earlier.Even though this is a serious discrepancy, this was not apparently broughtto the notice of the Detaining Authority. Further, there is nothing onrecord to show that the Detaining Authority has called for any explanationregarding such discrepancy. This according to the learned counsel wouldamount to non-application of mind to the relevant facts.5. The said contention has been raised in paragraph 7 of theaffidavit filed in support of the above Habeas Corpus Petition, whichreads as follows:-“7. The detenu was arrested at 6.00 am and after taken himinto the police station a case was registered in CrimeNo.625 of 2006 at about 11.00 am, but the crime no existedin the police station at about 11.00 am was appeared in theobservation mahazar prepared at about 8.00 am which wasquiet impossible. The detaining authority has passed theorder of detention without applying his mind”.6. While referring to the said contention, in the counter affidavitfiled by the first respondent in paragraph 11, it is stated as follows:-“11. Regarding the averments in para 7 of the grounds of theaffidavit, it is not correct to state that the detenu wasarrested 6.15 AM and after taken him into Police Station acase was registered in Cr.No.625/2006 at about 11.00 AM.It is not correct to state that the Cr.No. Existed in thePolice Station at about 11 PM., it is 11.00 AM, theobservation mahazar prepared 8 AM, after effecting thearrest about 6.15 AM, and immediately confession statementof the detenu was recorded. Seizure effected at 7.00 AM and https://hcservices.ecourts.gov.in/hcservices/ observation mahazar prepared at 8.00 AM hence it is quitepossible for the sponsoring authority while discharging hisduty.It is not correct to state that the detaining authority haspassed the order of detention without applying his mind”.7. A perusal of the aforesaid averments in the counter affidavitclearly indicates that there is absolutely no explanation as to how thecrime number could be given in the observation mahazar which was supposedto have been prepared earlier to the registration of the crime itself. Inthis context, it has to be pointed out that the above said glaringdiscrepancy has not only been considered by the Detaining Authority at thetime of forming his subjective satisfaction but the Detaining Authorityhas not applied his mind to the contentions put forth by the petitioner inparagraph 7 of the affidavit. It is unfortunate that the avermentscontained in paragraph 11 of the counter affidavit does not convey anymeaning at all. The Detaining Authority has not applied his mind to thecontentions put forth in paragraph 7 of the affidavit and has also notapplied his mind while dealing with the same at the time of filing thecounter affidavit. Thus there has been non-application of mind on thepart of the Detaining Authority while forming the subjective satisfactionand passing the order of detention as well as at the time of rebutting theabove said contentions put forth by the petitioner in the affidavit. Thisshows that while passing orders of detention affecting the liberty of thecitizen a very casual attitude has been adopted by the Detaining Authority.8. While considering a similar contention a Division Bench of thisCourt in its order dated 12.10.2001 passed in H.C.P.No.759 of 2001 hasobserved as follows:-“At the time when the mahazar was prepared at the spot, nocrime was registered and therefore, it could not have beenpossible to mention any crime number in the seizure mahazaras well as in the destruction mahazar. This glaringinconsistency has not been adverted to by the detainingauthority nor any clarification had been obtained from thesponsoring authority with reference to this discrepancy.In such circumstances, we are of the opinion that there isa non-application of mind on the part of the detainingauthority and the subjective satisfaction arrived at by himis improper. Therefore, on this ground, we are of the viewthat the order of detention has to be set aside andaccordingly, the same is set aside”.9. The learned Additional Public Prosecutor appearing for the Statehowever contented that the observation mahazar was not a relied upondocument and as such no prejudice has been caused by the discrepancy foundtherein but in the light of the decision of the Division Bench referred tosupra, we are unable to accept the contention of the learned AdditionalPublic Prosecutor. The failure on the part of the Detaining Authority toadvert to the glaring discrepancy at the time of rebutting the contentionraised in the affidavit filed in the above Habeas Corpus Petition willdefinitely amount to non-application of mind which in our considered view https://hcservices.ecourts.gov.in/hcservices/ vitiates the order of detention. The order of detention is, therefore,set-aside and the petition is allowed. The detenu is directed to be setat liberty forthwith from the custody, unless his detention is required inconnection with any other case. srkSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Secretary to Government Food, Co-Operation and Consumer Protection Department, Chennai – 9.2. The District Magistrate and District Collector, Dharmapuri District, Dharmapuri.3. The Secretary to the Government, Food and Consumer Protection Department, Government of India, New Delhi.4. The Superintendent, Central Prison, Salem.5. The Joint Secretary to Government, Public (Law & Order) Fort Saint George, Chennai-96. the Public Prosecutor, High Court, Madras.+1 cc to C.Prakasam, Advocate Sr.No.12571.PV(CO)dcp/9.3.07H.C.P.NO.1221 of 2006