V.Kannammal v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 17.04.2009 CoramThe Honourable Mr.Justice ELIPE DHARMA RAOandThe Honourable Mr. Justice R.SUBBIAHH.C.P. No.1990 of 2008V.Kannammal... Petitioner..Vs..1. The State of Tamil Nadu, rep.by its Secretary, Food, Co-operation and Consumer Protection Department, Secretariat, Chennai-600 009.2. The Commissioner of Police, Chennai City Sub-Urban Area, St.Thomas Mount, Chennai-600 016.3. Government of India, rep.by its Secretary, Food and Consumer Protection Dept., New Delhi-110 001. ... RespondentsPetition filed under Article 226 of the Constitution ofIndia to issue a writ of Habeas Corpus, call for the recordsrelating to the detention order by Order No.01/2008 dated12.11.2008, passed by the 2nd respondent and quash the same anddirect the respondents to produce the detenu Viswanathan, son ofRathinam, aged 43 years, now confined at Central Prison, Puzhal,Chennai-66 and set him at liberty. For Petitioner: Mr.P.KrishnanFor Respondents: Mr.N.R. Elango, A.P.P., for R1 & R2 Mr.M.Gopikrishnan, ACGSC., for R3 https://hcservices.ecourts.gov.in/hcservices/ R.SUBBIAH, J.,Petitioner is the wife of the detenu viz., Viswanathan,against whom the detention order has been passed on 12.11.2008under sub-section (1) of section 3 of the Tamil Nadu Preventionof Dangerous Activities of Bootleggers, Drug Offenders, ForestOffenders, Goondas, Immoral Traffic Offenders, Slum Grabbers andVideo Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding himas a 'Blackmarketeer' and she is challenging the detention orderby this habeas corpus petition.2. For clamping the order of detention, the 2nd respondenthas relied upon three adverse cases and the ground case. Thefacts discussed by the detaining authority in the grounds ofdetention with regard to the ground case are as follows:(a) On 02.11.2008 at 11.30 Hours, while the Inspector ofPolice, Civil Supplies, C.I.D., along with police party,conducting raids, to watch as to whether the items of essentialcommodities such as rice and kerosene intended to be supplied topoor people under Public Distribution System are smuggled andsold at black market, they received a reliable information thatthe rice meant for Public Distribution System was stored forsmuggling at T.P.Elumalai Street, S.V.Nagar, Ambattur.(b) On receipt of the said information, the Inspector ofPolice, Civil Supplies C.I.D., along with his police party,rushed to the said spot and found that the detenu was standingnear a thatched shed in that street and noticing the policeparty, the detenu tried to escape from the spot. When HeadConstable Thiru Ramesh rushed to apprehend him, he took an ironrod, measuring a length of 2-1/4 feet from the roadside andrushed to beat the said Ramesh over his head; but, however, theHead Constable Ramesh bent himself and escaped from the saidattack. The Inspector of Police and his police party surroundedthe detenu and apprehended him at the spot and retrieved the ironrod and examined him. Subsequently, the detenu was taken to theplace where he illegally stored the rice, which was actuallymeant for supply to the poor people under Public DistributionSystem and examined the rice bags. On examination, the Inspectorof Police found 50 Nos.of bags and each bag was found to containabout 50 kgs.of ration rice. Since the detenu had no properauthentication for storing the rice meant for Public DistributionSystem, the Inspector of Police, Civil Supplies C.I.D., recordedhis confession statement and seized the 50 Nos.of bags and theiron rod used for assaulting the police personnel under a coverof mahazar. Thereafter, the sponsoring authority, namely, theInspector of Police, Civil Supplies C.I.D., registered a case inCrime No.1919 of 2008 for the offences punishable under Sections6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of Essential https://hcservices.ecourts.gov.in/hcservices/ Commodities Act, 1955 and Sections 403, 332 and 307 IPC. Afterexamining the witnesses, the detenu was produced before thelearned Judicial Magistrate, Ambattur, who remanded him tojudicial custody and he was lodged at Central Prison, Puzhal,Chennai as remand prisoner till 17.11.2008. Thereafter, theInspector of Police sent the seized ration rice bags to theAssistant Manager, Tamil Nadu Civil Supplies Corporation Limited,Anna Nagar to keep them under safe custody under acknowledgmentand also requested to issue quality certificate after analysis.Subsequently, the Inspector of Police received the qualitycertificate from the Assistant Manager confirming that it was theration rice, meant for distribution to the poor people underPublic Distribution System. Since the act of the detenu had notonly affected the distribution of rice to the poor public underPublic Distribution System, but also had caused loss to theGovernment and since he was habitually purchasing the ration riceat meagre cost and also transporting to other States forpecuniary gain, the sponsoring authority, finding that thedetenu has acted in a manner prejudicial to the maintenance ofsupplies of commodities essential to the community and as such,he is a "Black Marketeer" as contemplated under Section 3(1) ofthe Prevention of Black Marketing and Maintenance of Supplies ofEssential Commodities Act, 1980, sent a proposal to the DetainingAuthority for passing an order of detention against him. TheDetaining Authority, on consideration of the materials placedbefore him, passed the order of detention against the detenu.Aggrieved by the same, the present Habeas Corpus Petition isfiled.3. In his endeavour to assail the order of detention,amongst other grounds, learned counsel appearing for thepetitioner has stressed the following grounds: (i) in page 5 of the grounds of detention, it hasbeen stated that the sponsoring authority had seized 50bags of rice and the iron rod used for assaulting thepolice personnel under a cover of mahazar. But, in themahazar, which is available at page 70 of booklet, noreference was made with regard to the seizure of iron rod;(ii) in the first information report pertaining to theground case, available at page 66 of the booklet, it hasbeen mentioned as if the offence was committed on02.11.2008, whereas in column 2 of the arrest report(found at page Nos. 71 and 72 both in Tamil and Englishversions), the date of offence was mentioned as 02.10.2008at 11.30 Hours. The discrepancy in mentioning the date ofoffence in between the first information report and thearrest report was not properly looked into by the Detainingauthority and he has not called for any explanation for thesame from the sponsoring authority . Therefore there is https://hcservices.ecourts.gov.in/hcservices/ non-application of mind on the part of the detainingauthority in passing the detention order. Hence on thisground, the detention order is liable to be set aside;(iii) in the quality certificates available at pageNos.80 and 81 of the booklet, the samples were numbered asSB 169/350 and SB 170/351 respectively; but the samplenumbers were wrongly mentioned in the statement ofAssistant Manager as 69 and 70, instead of 169 and 170.The detaining authority, without looking into thesediscrepancies and without calling for any explanation fromthe sponsoring authority, has passed the order ofdetention. Hence, the act of the detaining authority wouldshow that without arriving at proper subjectivesatisfaction, the detaining authority has mechanicallypassed the order of detention on receipt of the materialsfrom the sponsoring authority; that the detaining authorityought to have taken care and caution while perusing thematerials before reaching the subjective satisfaction. Inthe instant case, the act of the detaining authority wouldshow that he has given a go-bye to all the cardinalprinciples of law, which are to be adopted while passing apre-dention order. Hence, the detention order is vitiatedfor want of application of mind by the detaining authority.(iv) Learned counsel for the petitioner next contendedthat in para 4 of the grounds of detention, the detainingauthority stated that in the ground case the detenu wasremanded to judicial custody and was lodged at CentralPrison, Puzhal as remand prisoner till 17.11.2008 and hehas not moved any bail application so far. The detainingauthority, after observing that the detenu has not movedany bail application till the date of passing of detentionorder, has stated in the grounds of detention that there isa real possibility of coming out on bail by filing anotherbail application before the lower court. The relevantlines from para 4 are extracted hereunder:"4. I am aware that Thiru.Viswanathan wasproduced before the Judicial Magistrate Court,Ambattur, Chennai, in Civil Supplies, CID, ChennaiUnit Crime No.1919/2008 and he was remanded tojudicial custody and was lodged at Central Prison,Puzhal, Chennai, as remand prisoner till 17.11.2008and he has not moved any bail application so far. Iam also aware that there is real possibility of hiscoming out on bail by filing another bail applicationbefore the Lower Court or Court of Sessions orHon'ble High court since in similar cases bails aregranted by the above Courts after a lapse of time.If he comes out on bail he will indulge in such https://hcservices.ecourts.gov.in/hcservices/ further activities in future as well which will beprejudicial to the maintenance of supplies ofcommodities essential to the community...".Thus, by referring to the above lines, the learned counselfor the petitioner contended that when no bail applicationwas moved by the detenu till the date of passing thedetention order, the question of filing another bailapplication does not arise and it would show that propersubjective satisfaction was not arrived at by thedetaining authority and the detaining authority has passedthe order of detention mechanically without taking duecaution that he is dealing with the matter of pre-detention. Therefore, there is complete non-application ofmind on the part of the detaining authority, which woulddeprive the right guaranteed under Article 22(5() of theConstitution of India and hence the impugned order isliable to be set aside.4. By way of reply, learned Additional Public Prosecutorsubmits that such aspects, as adverted to by the learned counselfor the petitioner, are not sufficient to come to the conclusionthat the impugned order of detention is passed withoutapplication of mind by the detaining authority. Thesediscrepancies can be considered only as inadvertent mistakes,which would normally occur while dealing with voluminousdocuments. Under such circumstances, the habeas corpus petitionis liable to be dismissed.5. Heard the learned counsel for the petitioner and therespondents and perused the entire materials placed before us.6. With regard to the first contention, on a close perusalof the records, we find that the seizure of iron rod is totallyimmaterial to arrive at a proper subjective satisfaction. Nodoubt, in the mahazar available at page 70, no reference wasmade with regard to seizure of iron rod. But, a perusal of thefirst information report and other documents would show that theiron rod was seized from the detenu at the time of occurrence.Though the seizure of iron rod was not referred to in themahazar available at page 70, in the first information report(page No.67) it has been clearly mentioned that the iron rod wasseized by the sponsoring authority from the place of occurrence.Therefore, we do not find any error in mentioning about theseizure of the iron rod in the grounds of detention by thedetaining authority and we reject the submission made by thelearned counsel for the petitioner that there is non-applicationof mind on the part of the detaining authority in this regard. https://hcservices.ecourts.gov.in/hcservices/

7. So far as the the other submission made by the learnedcounsel for the petitioner with regard to the discrepancy inmentioning the date of occurrence is concerned, it is clear thatthe date of occurrence was 02.11.2008 because except in columnNo.2 of the arrest report, in all other columns it is rightlymentioned as 2.11.2008.8. Similarly, with regard to the other contention made bythe learned counsel for the petitioner relating to the statementmade by Assistant Manager in respect of sample numbers foundcontrary to the sample number mentioned in the qualitycertificate, in our considered opinion, mentioning the sampleNos.as 69 and 70 instead of 169 and 170 as found in thequality certificate, could be considered only as an inadvertenttypographical mistake. Hence, in our opinion, when there isenough material to show that the occurrence had occurred on02.11.2008 and the sample Nos.are 169 and 170, the discrepanciespointed out by the learned counsel for the petitioner found incertain documents could not help the detenu to persuade thisCourt to come to a conclusion that there is non-application ofmind on the part of the detaining authority. Hence, we arerejecting the submission made by the learned counsel for thepetitioner in this regard.9. In respect of the submission made by the learned counselfor the petitioner with regard to imminent possibility of thedetenu coming out on bail, according to the learned AdditionalPublic Prosecutor, the statement of the detaining authority thatthere is real possibility of the detenu coming out on bail byfurther filing bail application cannot be held to be nonapplication of mind on the part of the detaining authority, inthe light of the judgment of the Hon'ble Supreme Court in IbrahimNazeer Vs. State of T.N.and another reported in (2006) 3 SCC(Cri) 17, wherein, while answering such similar contention raisedtherein, it has been held by Their Lordship as under:-"5. In support of the appeal, learned counsel forthe appellant that the only plea raised was that theHigh Court was not justified in holding that thedetaining authority's view about imminent possibility ofthe detenu coming out on bail was correct. It was alsosubmitted that since the detenu had not filed any bailapplication after withdrawal of the first petition, thedetaining authority could not have inferred that therewas possibility of his being released on bail"....Xxxxxxxxxx https://hcservices.ecourts.gov.in/hcservices/

7. It is to be noted that whether prayer for bailwould be accepted depends on the circumstances of eachcase and no hard and fast rule can be applied. The onlyrequirement is that the detaining authority should beaware that the detenu is already in custody and islikely to be released on bail. The conclusion that thedetenu may be released on bail cannot be an ipse dixitof the detaining authority. On the basis of materialsbefore it, the detaining authority came to theconclusion that there is likelihood of the detenu beingreleased on bail. That is his subjective satisfactionbased on materials. Normally, such satisfaction is notto be interfered with. On the facts of the case, thedetaining authority has indicated as to why he was ofthe opinion that there is likelihood of the detenu beingreleased on bail. It has been clearly stated that insimilar cases, orders granting bail are passed byvarious courts. The appellant has not disputed thecorrectness of this statement".... 10. Applying the above proposition, it could be seen that inthe case on hand, the detaining authority had satisfied himselfabout the real possibility of the detenu coming out on bail byfiling further bail application before the same court or highercourts, since in similar cases bails are granted by the samecourt or higher courts after a lapse of time, based on thematerials placed before the Courts. The detaining authorityfurther proceeded to state that he was fully satisfied that thedetenu is a Black Marketeer and that there is a compellingnecessity to detain him in order to prevent him from indulging insuch further activities in future, which are prejudicial to themaintenance of public order under the provisions of the TamilNadu Act 14 of 1982. 11. On going through the materials placed on record and alsothe grounds of detention order, we are of the view that thedetaining authority has rightly arrived at the subjectivesatisfaction to hold that the detenu is a Black Marketeer andalso the reasoning as to the real possibility of his coming outon bail by filing bail application before the same court orhigher courts. Therefore the contention raised by the learnedcounsel for petitioner in this regard cannot be accepted. https://hcservices.ecourts.gov.in/hcservices/ From the said discussions, we are of the view that there isno valid ground to set aside the order of detention dated12.11.2008. Hence, the habeas corpus petition fails and,accordingly, the same is dismissed.GlSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Government, State of Tamil Nadu, Food, Co-operation and Consumer Protection Department, Secretariat, Chennai-600 009.2. The Commissioner of Police, Chennai City Sub-Urban Area, St.Thomas Mount, Chennai-600 016.3. The Secretary, Government of India, Food and Consumer Protection Dept., New Delhi-110 001.4. The Superintendent, Central Prison, Puzhal, Chennai.66.5. The Public Prosecutor, High Court, Madras.+ 1 cc to Mr. M. Gopikrishnan, Additional Central GovernmentStanding Counsel SR No.14913MBS(CO)SR/22.4.2009 Order inH.C.P.No.1990 of 2008