MohammedAsik v. The Secretary to Government, Food, Cooperation and Consumer Protection Deartmnt, Secretariat, Chennai 600 009 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:16.06.2008CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMANDTHE HON'BLE MR.JUSTICE S.PALANIVELUHCP.NO.170 OF 2008MohammedAsik ... Petitioner/brother of the detenuVs.1.The Secretary to Government, Food, Cooperation and Consumer Protection Deartmnt, Secretariat, Chennai 600 0092. The District Collector and District Magistrate, Theni District, Theni.3. The Addl.Secretary to Government of India, Department of Consumer Affairs, 270, Krish Bhavan, New Delhi 110 001. ..RespondentsPetition under Article 226 of the Constitution of India forthe issuance of a writ of Habeas Corpus calling for the records inconnection with the detention order No.01/2008/CS dated 24.01.2008against the petitioner's brother Thameemul Ansari Son of AbdulRahuman, aged about 22 years who is confined at Central Prison,Madurai and set aside the same and direct the respondents to producethe detenu before this Court and set him at libertyFor petitioner : Mr.V.ParthibanFor Respondents : Mr.M.Babu Muthu Meeran Additional Public Prosecutor 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 the order of detention of the detenueterming him as "Black Marketeer" made by the second respondent inNo.01/2008/CS dated 24.01.2008.2. Affidavit filed in support of the petition is perused.The order under challenge is also perused. Heard the learned counselfor the petitioner as well as the learned counsel appearing for therespondents-State.3. Consequent upon the recommendation made by the SponsoringAuthority, two cases came to be registered against the detenu,viz.Firstly pursuant to the incident in which CS CID intercepted thedetenu on 11.10.2007 at 14.30 hours, the detenu was found inpossession of 30 bags of PDS Boiled rice each containing 50 Kgs andhence a case came to be registered in Crime No.581 of 2007 underSection 6(4) of TNSC (RDCS) order 1982 read with 7(i)(a)(ii) ofEssential Commodities Act 1955 and secondly on the strength of groundcase, pursuant to the registration of a case in Crime No.20 of 2008under Section 6(4) of TNSC (RDCS) order 1982 read with 7(i)(a)(ii) ofEssential Commodities Act 1955 alleging that on 11.1.2008 at the timeof interception, the detenu along with other accused found inpossession of 60 bags of PDS Rice each containing 50 Kgs. Thedetaining authority has recorded that he has arrived at a subjectivesatisfaction on the materials available to record a finding that thedetenu was actually transporting the essential commodities in amanner prejudicial to maintenance and supplies of Commoditiesessential to the community, thus violated the provisions of EssentialCommodities Act 1955 and in order to prevent him from doing suchactivities in future, necessity arose to pass such an order ofdetention which is the subject matter of challenge before thisCourt. 4. Advancing the arguments on behalf of the petitioner, in asincere attempt of assailing the order, learned counsel raised thefollowing points. The detaining authority has not applied its mindbefore passing the order under challenge for the reason that he hasnot sought for any clarification as required under the facts andcircumstances of the case. The first case was registered against thedetenu on 11.10.2007 and the second case was registered on 11.1.2008.The first one was adverse case and the second one was ground case.On production of the detenu before the Judicial Magistrate,Uthamalapalayam in the ground case, bail application was moved and hewas bailed out on 21.1.2008. A perusal of the order passed in thebail application would clearly indicate that no objection was raised https://hcservices.ecourts.gov.in/hcservices/ by the prosecution when it was stated by the accused/petitioner thatthere was no previous case against him. The Sponsoring authorityfiled its affidavit along with the materials before the detainingauthority on 23.1.2008 where one adverse case and one ground casewere pointed out, which were referred to above. It is pertinent topoint out that the bail order passed by the Judicial Magistrate inCr.M.P.No.491 of 2008 was also placed before the detaining authorityand thus had the detaining authority looked the materials properlyand applied its mind, he would have called for clarification as tothe difference. But, he has not done so. Added further, learnedcounsel that in Crime No.20/08 referred to above, registered on11.1.2008, the detenu was produced before the learned JudicialMagistrate, Uthamapalayam at about 8.30, as could be seen from theorder of remand made by Judicial Magistrate concerned as found inpage 65 of the booklet and in particular, as per the seizure mahazarand also the statement of witnesses therein the interception andrecovery of PDS rice was made between 8 and 9. If to be so, he couldnot have been produced at 8.30 before the learned Magistrateconcerned hence there also it requires clarification from theauthority how it happened. But the detaining authority had notlooked into account the same also. Thus, it would speak about non-application of mind on the part of the detaining authority and hencethe order under challenge has got to be quashed.5. The Court heard the learned Additional Public prosecutoron the above contentions and had a thorough perusal of materialsavailable which in the opinion would reach the irresistableconclusion that the order has got to be quashed. 6. Concededly the order under challenge terming the detenuas Black Marketeer came to be passed on the strength of the affidavitmade by the sponsoring authority on 23.1.2008. It is also not incontroversy that two cases i.e. one adverse case and one ground casecame to be registered against the detenu, one on 11.10.2007 andanother on 11.1.2008. As rightly pointed out by the learned counselfor the petitioner, the detenu sought for bail before the JudicialMagistrate,Uthamapalayam in the ground case. On production for remandin Crl.M.P.No.491 of 2008, the Magistrate on appraisal of thecircumstances passed an order granting bail . While doing so, learnedMagistrate concerned has pointed out that according to thepetitioner, he was not involved in any other case and the prosecutionhas also not raised any objection in this regard. But, when thesponsoring authority made an affidavit on 23.01.2008 i.e. within fewdays after the grant of bail, the sponsoring authority has pointedout that two cases were registered one adverse case and one groundcase and thus when the materials are placed, no doubt the ordergranting bail in Crl.M.P.No. 491 of 2008 should have been placedbefore the detaining authority and if the detaining authorityverified the documents properly, he would have called forexplanation. But neither he has verified the materials placed before https://hcservices.ecourts.gov.in/hcservices/ him nor he has called for clarification from the authorityconcerned. Secondly, as could be seen from the materials availablethat the interception of the detenu was made along with two accusedon 11.1.2008 and PDS rice was seized under the cover of mahazarbetween 8 and 9 a.m. and if the order of the Magistrate concernedmaking a remand of the detenu would indicate that he was producedbefore the Court at 8.30 and had it been true that PDS rice wasseized under the cover of Mahazar between 8 and 9 , questioningbefore the Magistrate at 8.30 would not arise. Under suchcircumstances, it requires clarification which the detainingauthority compelled to do so. All would go to show that the detainingauthority has not properly applied its mind before passing the orderwhich in the opinion of this Court would cause prejudice to theinterest of the detenu. Hence, without hesitation, the habeas corpuspetition has got to be quashed and accordingly it is quashed. 7. Accordingly, the Habeas Corpus Petition is allowed,setting aside the detention order passed by the second respondent inDetention Order No.01/2008/CS dated 24.01.2008, the detenu, namely,Thameemul Ansari, who is now confined at Central Prison, Madurai isdirected to be set at liberty forthwith unless his presence isrequired in connection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.Registrar VJYTo1.The Secretary to Government, Food, Cooperation and Consumer Protection Deartmnt, Secretariat, Chennai 600 0092. The District Collector and District Magistrate, Theni District, Theni. https://hcservices.ecourts.gov.in/hcservices/

3. The Addl.Secretary to Government of India, Department of Consumer Affairs, 270, Krish Bhavan, New Delhi 110 001.4. The Superintentent, central prison, Madurai.5. The Joint sSecretary to Government, public (Law & Order)Department, Fort St.George, chennai.6. The Pubulic Prosecutor, high Court, madras-1041 CC To Mr.C.Prakasam, Advocate, SR NO.29774. HCP.NO.170 OF 2008ssn(co)pmk/3.7.08