AnanthiW/o. Karthigai Rajan v. The Secretary to Government

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30-11-2009CORAMTHE HONOURABLE MR. JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR. JUSTICE D. HARIPARANTHAMANHABEAS CORPUS PETITION NO.1694 OF 2009AnanthiW/o. Karthigai Rajan.. PetitionerVs.1.The Secretary to Government,Food and Consumer Protection Department,Government of India,New Delhi 110 001.2.The Secretary to Government,Food and Consumer Protection Department,Government of Tamil Nadu,Fort St. George, Chennai 600 009.3.The Commissioner of Police,Chennai City Sub-Urban Area,St.Thomas Mount, Chennai.. RespondentsPetition filed under Article 226 of the Constitution of Indiafor the issuance of Writ of Habeas Corpus to call for the recordsrelating to the third respondent, pertaining to Memo No.7/BlackMarketing Act/2009, dated 28.9.2009, in detaining the detenu underthe Prevention of Black Marketing and Maintenance of Supplies ofEssential Commodities Act, 1980 (Central Act No.7 of 1980) as "BlackMarketeer" and quash the same and direct the respondents to producethe said detenu, namely, Karthigai Rajan, S/o. Raja Nadar, aged about43 years, who is detained at Central Prison, Puzhal, Chennai, beforethis Court and set him at liberty.For Petitioner: Mr.R. Gandhi Senior Counsel for Mr.D. VeerasekaranFor Respondent-1: Mr.M. Gopikrishnan Central Govt. Counsel https://hcservices.ecourts.gov.in/hcservices/ For Respondents-2 & 3: Mr.V.R. Balasubramaniam Addl. Public ProsecutorO R D E RELIPE DHARMA RAO, JThe petitioner, wife of the detenu, has come forward with thepresent Habeas Corpus Petition to quash the order of detention passedby the second respondent in Memo No.7/Black Marketing Act/2009, dated28.9.2009, detaining the detenu Karthigai Rajan, S/o. Raja Nadar, asa 'Black Marketeer' as contemplated under the provisions of thePrevention of Black Marketing and Maintenance of Supplies ofEssential Commodities Act (hereinafter referred to as "the Act").2. The detaining authority in the order of detention hasreferred to three adverse cases, on the basis of which the detainingauthority has clamped the order of detention against the detenu. Thethree adverse cases were registered by Civil Supplies CID., ChennaiUnit Cr.Nos.118/2006, 536/2006 and 551/2009 under Sections 6(4) ofTNSC (RDCS) Order 1982 r/w.7(1)(a)(ii) of Essential Commodities Act,1955. The facts leading to registration of the ground case is asfollows :-On 19.9.2009, on the information received from an Informantthat one unknown person has been arranging PDS rice bags in rowsinside Redhills Bus Stand and he was about to smuggle such bags, theInspector of Police, Civil Supplies, CID, Chennai City Unit, alongwith his party rushed to the spot and found Karthigai Rajan, (thedetenu), who was arranging PDS rice bags in rows inside the Red Hillsbus stand, after noticing the police trying to escape. However, whenthe police tried to apprehend, the detenu took out an iron rod andtried to assault the Head Constable by uttering that you would all bekilled otherwise I could not run the business, but the Head Constableescaped from the said attack. The detenu was surrounded andapprehended and after examining him he wastaken to the spot where he stored the rice intended for supply to thepoor public under Public Distribution System (in short "PDS") and 55bags each containing 50 kgs of PDS rice were seized in the presenceof witnesses. A case in Civi Supplies, CID, Chennai City Cr.No.553of 2009 under Sections 6(4) of T NSC (RDCS) Order 1982 r/2 7(1)(a)(ii) of E.C. Act, 1955 and 403, 332 and 307 IPC., was registered.After observing all the formalities, the detenu was produced beforethe Judicial Magistrate Court-I, Thiruvallur and was lodged atCentral Prison, Puzhal, Chennai, as remand prisoner till 01.10.2009.3. In view of the above, the sponsoring authority has satisfiedthat the detenu is habitually purchasing ration rice at meagre cost https://hcservices.ecourts.gov.in/hcservices/ and illegally storing and also transporting to other States with aview to get more pecuniary gain and as such he is a "Black-marketer",as contemplated under Section 3(1) of the Act and hence, sponsoredthe detenu before the Detaining Authority for passing an order ofdetention against him. The Detaining Authority, on consideration ofthe materials placed before him, passed the order of detentionagainst the detenu. The said order is in challenge in the presentHabeas Corpus Petition.3. Heard the learned counsel appearing for the petitioner andthe learned Additional Public Prosecutor for the respondents andperused the materials produced before us.4. Learned Senior Counsel appearing for the petitioner hasraised the following grounds :-(1) The telegram sent on behalf of the detenu on 19.9.2009followed by a detailed representation dated 23.9.2009 regardingillegal custody of the detenu by CSCID Chennai Unit on 18.9.2009 at4.00 P.M., were not considered by the detaining authority, whichvitiates the order of detention.(2) The representation dated 2.10.2009 sent by the petitionerwas not considered by the detaining authority.(3) In para 4 of the grounds of detention, the detainingauthority has averred that in similar cases bails are granted,whereas no material has been placed to come to the aforesaidconclusion. (4) In para 4 of the grounds of detention, the detainingauthority has referred to the detenu coming out on bail inCr.No.480/2009, whereas no case has been registered against thedetenu in Cr.No.480/2009 and, therefore, the order of detentionshould be set aside on the ground of non-application of mind.(5) Since only the grounds of detention dated 3.10.2009 alonewas served on the detenu, it must be taken that no order of detentionhas been passed as there is nothing on record to show that the orderof detention had been served on the detenu.(6) There is no material on record to come to the conclusionthat the seized rice comes under the PDS.5. So far as the first contention is concerned, according to thepetitioner, the telegram alleging pre-detention of the detenu on18.9.2009 had been sent by the petitioner on 19.9.2009 and suchtelegram had not been considered before passing the order ofdetention, which vitiates the order of detention. To strengthen such https://hcservices.ecourts.gov.in/hcservices/ contention, the learned Senior Counsel has relied on an unreporteddecision of this Court in HCP.No.1295 of 1998 (Karthick v. State rep.by the Secretary to Government, Prohibition and Excise Department andanother) and the decision reported in 2007(2) CTC 614 (Sarputhin v.State rep. by the Secretary to Government, Prohibition and ExciseDepartment and another). Learned Senior Counsel for the petitionerhas produced the receipt as well as a copy of the telegram tosubstantiate his contention. Learned Addl. Public Prosecutor hasfiled his counter affidavit wherein he has stated that no telegramsent by the petitioner on 19.9.2009 was received by the office of theCommissioner and, therefore, such contention should be rejected6. Law is well settled that sending a telegram by itself is notan authenticated document and it has to be confirmed by a subsequentsigned application, representation or an affidavit and the contentsof the telegrams have no authenticity at all. This position is clearfrom the decision of the Honourable Supreme Court reported in 1994Supp (1) SCC 62 (D.M. v. R. KUMARAVEL), wherein it has been observedas follows :-"9. We may examine the argument of the learned counselfor the detenus from another angle. The detenus have basedtheir case solely on the fact that the contents of thetelegrams sent on their behalf were not taken intoconsideration by the detaining authority. There is nothingon the record to show that before the detention orders werepassed any other communication was sent to the detainingauthority or to the police, confirming the contents of thetelegrams. A telegram by itself is not an authenticdocument. It is like an unsigned/anonymous communication.Unless a telegram is confirmed by a subsequent signedapplication, representation or an affidavit, the contents ofthe telegrams have no authenticity at all and the samecannot be taken into consideration for assessing the valueof the other authentic documents on the record. Thedetention orders were passed by the District Magistrate onthe basis of the material placed before him by the policeauthorities. Any material received by the DistrictMagistrate in the shape of telegrams could not be taken intoconsideration by him in the absence of any subsequentcommunication confirming the same. We are, therefore, of theview that the orders of detention could not be challenged onthe ground that some material contained in a telegramsimpliciter was not taken into consideration by thedetaining authority."(Emphasis added)7. From the aforesaid decision, it is apparent that evenassuming that telegram has been sent and the same has been received, https://hcservices.ecourts.gov.in/hcservices/ such telegram cannot have any authenticity unless it is followed by awritten representation. 8. In this context, the learned Senior Counsel has stated thatafter sending the telegram dated 19.9.2009 a detailed representationwas sent by the petitioner to the detaining authority on 23.9.2009and, therefore, the aforesaid decision of the Supreme Court does notapply to the present case.9. The allied contention now raised by the learned SeniorCounsel is only stated to be rejected. According to the learnedSenior Counsel the representation has been sent on 23.9.2009 and asper the acknowledgment produced by him as seen from the typed set ofpapers, the said representation was received by the detainingauthority, namely, the Commissioner of Police on 29.9.2009, after theorder of detention. Therefore, the question of consideration of pre-detention representation does not arise in the present case.Moreover, the decision relied on by the learned Senior Counsel inHCP.No.1295 of 1998 will not be applicable to the facts of thepresent case inasmuch as in the said case the representation dated22.7.1998 was received by the detaining authority on 28.7.1998 andthe order of detention came to be passed on 1.8.1998 and in suchcircumstances the Division Bench had allowed the petition, whereas inthe present case the order of detention came to be passed before thereceipt of the representation. In the other decision relied on bythe learned Senior Counsel in Sarputhin case, the decision of theSupreme Court in 1994 Supp (1) SCC 62 (cited supra) had not beenconsidered and, therefore, with respect we are not relying upon thesaid Division Bench decision.10. The next contention raised on behalf of the petitioner isthat the representation dated 2.10.2009 was not considered andtherefore the order of detention is liable to be set aside. In orderto appreciate this contention, we have gone through the materialsplaced before us and the counter affidavit filed by the respondents.In para 6 of the counter affidavit it has been stated clearly thatthe representation of the petitioner has been considered by thedetaining authority and therefore there is no question of non-consideration of the representation. The said fact is also affirmedby the materials placed before us. Therefore, the second contentionfails and the same is liable to be rejected.11. The next contention is that though in para 4 of the groundsof detention the detaining authority has averred that in similarcases bails are granted, no material has been placed to come to theaforesaid conclusion. In support of such contention learned SeniorCounsel has relied upon the decision of a Division Bench of thisCourt in HCP.No.870 of 2009 (Ramesh v. The Secretary to Government,Home, Prohibition and Excise Department and another). https://hcservices.ecourts.gov.in/hcservices/

12. We have gone through the grounds of detention and,admittedly, the detaining authority has not given any details aboutthe similar case in which bails are granted by the courts. We havegone through the decision relied on by the learned Senior Counsel.In that case the order of detention was passed against the persondetaining him as a Goonda and further in the said order the nature ofoffences in the ground case as well as the adverse case were notnarrated. Moreover, the petitioner has not made any specific requestfor furnishing details of such similar cases, though he had madeseveral representations to the detaining authority as well as toother authorities. In the present case, the detenu has beendetained under the Act as a Black-marketer for an offence ofsmuggling 55 bags of PDS rice meant for distribution to the publicand having three adverse cases wherein in one of the casesregistered in Cr.No.551/2009 the allegation was that the detenu hassmuggled 386 bags of PDS raw rice and 59 bags of PDS boiled rice. Insuch circumstances, with respect, we do not think that the decisionrelied on by the learned Senior Counsel can be applied to the factsof the present case and, the contention of the learned Senior Counselin this regard is rejected.13. The fourth contention of the learned Senior Counsel is tothe effect that at para 4 of the grounds of detention, the detainingauthority has referred to Crime No.480 of 2009, whereas there is nosuch crime number in which the detenu was detained. Therefore, theorder of detention passed mechanically by the detaining authority isliable to be set aside.14. In so far as this contention is concerned, the learned Addl.Public Prosecutor has stated that while drafting the grounds ofdetention a mistake had inadvertently crept in and the crime numberhas been wrongly mentioned as 480/2009 instead of 553/2009 in theEnglish version, but in page No.6 of the Tamil version the CrimeNumber is correctly mentioned as 553/2009 and, therefore, noprejudice has been caused to the detenu and the order of detentiondoes not suffer from infirmity.15. It is true that in the English version of the grounds ofdetention the crime number has been wrongly mentioned inasmuch asinstead of 553/2009 it was mentioned as 480/2009. As rightlysubmitted by the learned Addl. Public Prosecutor in the Tamilversion, the language known to the detenu, the crime number has beenclearly described. We have perused the representations sent by thepetitioner. In the said representations sent by the petitioner todifferent authorities the crime numbers have been correctly describedas 553/2009 and not 480/2009 and, therefore, the wrong description ofthe crime number has not caused any prejudice to the petitioner inmaking the effective representation. Hence, the aforesaid contention https://hcservices.ecourts.gov.in/hcservices/ is also liable to be rejected.16. The next contention raised by the learned Senior Counsel isto the effect that since only the grounds of detention dated3.10.2009 alone was served on the detenu, it must be taken that noorder of detention has been passed.17. Learned Addl. Public Prosecutor by denying the aforesaidcontention has submitted that the order of detention was served bythe Addl. Superintendent of Prisons, on the very same day when theorder of detention was passed i.e., 28.9.2009 and produced copies ofthe order of detention before this Court.18. We have perused the copies of the order of detention servedon the detenu before the Addl. Superintendent of Prisons. In thebackside of the order of detention, the affixed seal reveals that thedetenu by putting his signature had written the date on his own handas 28.9.2009 and, therefore, we are not in a position to accept thecontention raised by the learned Senior Counsel in this regard.19. The last contention raised by the learned Senior Counsel isthat there is no material on record to come to the conclusion thatthe seized rice comes under the PDS.20. In order to appreciate such contention, we have gone throughthe booklet furnished by the learned Senior Counsel. Page No.90 ofthe booklet contains the qualify certificate wherein the DeputyManager has confirmed that the rice seized was PDS rice. Therefore,once again we are unable to accept the contention of the learnedSenior Counsel and the said contention is rejected.21. At the time of hearing of the petition, learned SeniorCounsel appearing for the petitioner has contended that the order ofdetention is vitiated on the ground of non-application of mindsince the authority has not considered the fact that the detenu hadnot moved any bail application in the ground case and there was nopossibility of the detenu coming out on bail as he was in remand inconnection with the adverse cases for offence of similar nature. Insupport of the aforesaid contention, learned Senior Counsel hasrelied upon a decision of the Honourable Supreme Court in (2006) 3SCC (Cri) 324 (A. GEETHA v. STATE OF TAMIL NADU AND ANOTHER) and adecision of this Court reported in 2008(3) CTC 738 (MANNU v.SECRETARY TO GOVERNMENT, HOME, PROHIBITION AND EXCISE DEPARTMENT ANDANOTHER).22. Learned counsel for the respondents has placed strongreliance upon the decisions of the Supreme Court reported in (2006) 3SCC (Cri) 17 (IBRAHIM NAZEER v. STATE OF TAMIL NADU AND ANOTHER),(2006) 3 SCC (Cri) 50 (SENTHAMIL SELVI v. STATE OF TAMIL NADU AND https://hcservices.ecourts.gov.in/hcservices/ ANOTHER) and also the decision relied on by the learned SeniorCounsel in (2006) 3 SCC (Cri) 324 (A. GEETHA v. STATE OF TAMIL NADUAND ANOTHER).23. In (2006) 3 SCC (Cri) 17 (IBRAHIM NAZEER v. STATE OF TAMILNADU AND ANOTHER), the detention was under COFEPOSA Act. The onlycontention was to the effect that the High Court was not justified inupholding the conclusion of the detaining authority regardingimminent possibility of the detenu coming out on bail, moreparticularly when the detenu had not filed any bail application afterwithdrawal of the first bail application. The Supreme Courtobserved:-"7. It has to be noted that whether prayer for bailwould be accepted depends on the circumstances of each caseand no hard-and-fast rule can be applied. The onlyrequirement is that the detaining authority should be awarethat the detenu is already in custody and is likely to bereleased on bail. The conclusion that the detenu may bereleased on bail cannot be an ipse dixit of the detainingauthority. On the basis of materials before it, thedetaining authority came to the conclusion that there islikelihood of the detenu being released on bail. That ishis subjective satisfaction based on materials. Normally,such satisfaction is not to be interfered with. On thefacts of the case, the detaining authority has indicated asto why he was of the opinion that there is likelihood ofthe detenu being released on bail. It has been clearlystated that in similar cases, orders granting bail arepassed by various courts. The appellant has not disputedthe correctness of this statement. Strong reliance wasplaced by learned counsel for the appellant on RajeshGulati v. Govt. of NCT of Delhi. The factual scenario inthat case was entirely different. In fact, five bailapplications filed had been already rejected. In thatbackground this Court observed that it was not a "normal"case. The High Court was justified in rejecting the standof the appellant." (Emphasis added) 24. In (2006) 3 SCC (Cri) 324 (A. GEETHA v. STATE OF TAMIL NADUAND ANOTHER), the detenu was detained under Section 3(2) of the TamilNadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, SlumGrabbers and Video Pirates Act, 1982, on the allegation that detenuwas indulging in immoral trafficking. In the appeal, conclusionabout the imminent possibility of being released on bail was underchallenge. The Supreme Court made similar observations. https://hcservices.ecourts.gov.in/hcservices/

25. Similar observations were also made in (2006) 3 SCC (Cri)50(SENTHAMILSELVI v. STATE OF TAMIL NADU AND ANOTHER).26. A careful reading of these decisions indicates thatconclusion of the detaining authority regarding imminent possibilityof being released on bail was based on materials and as such was notliable to be interfered with as conclusion of the detaining authorityon the basis of materials on record regarding imminent possibility ofcoming out on bail should not be interfered with. At the same time,the Supreme Court emphasised that such conclusion should not be basedon the mere ipse dixit of the detaining authority, but on the otherhand should be based on materials on record. 27. In the present case, the detaining authority after goingthrough the reliable materials placed on record had come to asubjective satisfaction that if the detenu comes out on bail he willindulge in such further activities in future as well which will beprejudicial to the maintenance of supplies of commodities essentialto the community. The subjective satisfaction of the imminentpossibility of coming out on bail depends upon the facts of each caseand no hard-and-fast rule can be applied. Therefore, taking intoconsideration the facts and circumstances of the case and thematerials placed before us, we are of the considered opinion that thesubjective satisfaction arrived at by the detaining authorityregarding the imminent possibility of coming out on bail is not badto call for any interference.28. In view of our aforesaid reasons, we do not find any groundto interfere with the order of detention and accordingly, the HabeasCorpus Petition is dismissed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrardpkTo1.The Secretary to Government,Food and Consumer Protection Department,Government of India,New Delhi 110 001. https://hcservices.ecourts.gov.in/hcservices/

2.The Secretary to Government,Food and Consumer Protection Department,Government of Tamil Nadu,Fort St. George, Chennai 600 009.3.The Commissioner of Police,Chennai City Sub-Urban Area,St.Thomas Mount, Chennai.4. The Public Prosecutor,High Court, Madras.5.The Superintendent,Central Prison, Puzhal, Chennai.+1 cc to Mr.M.Gopikrishnan, Advocate, SR.No.64534+1 cc to M/s.D.Veerasekaran, Advocate, SR.No.64716ORDER IN HCP.NO.1694 OF 2009SP {CO}TP/3.12.2009.