Maheswari v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 8-7-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANHCP No.312 of 2009Maheswari.. Petitioner vs1.State of Tamil Nadu Rep. By its Secretary to Government Food and Consumer ProtectionDepartment Chennai 600 009.2.The District Magistrate andDistrict Collector The Nilgiris District3.Additional Secretary Government of India Ministry of Consumer Affairs Food and Public Distribution Department of Consumer Affairs Krishi Bhavan, New Delhi.. Respondents Habeas corpus petition filed under Article 226 of theConstitution of India praying for a writ of habeas corpus calling forthe entire records relating to the petitioner's husband's detentionunder Prevention of Black Marketing and Maintenance of Supplies ofEssential Commodities Act, 1980 vide detention order dated 8.2.2009on the file of the second respondent herein made in proceedingsCr.M.P.No.1/PBM MSEC – Act/2009, quash the same as illegal andconsequently direct the respondents herein to produce thepetitioner's husband namely Selvaraj, son of Kulandaiappa Gounder,aged 40 years before this Court and set the petitioner's husband atliberty from detention, now petitioner's husband detained at CentralPrison, Coimbatore.For Petitioner: Mr.V.ParthibanFor Respondents: Mr.N.R.Elango Additional PublicProsecutor for RR1 & 2 Mr.M.Devendran SPCCG for R3 https://hcservices.ecourts.gov.in/hcservices/ ORDER(Order of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to an order of detention made by the secondrespondent herein in Cr.M.P.No.1/PBM MSEC – Act/2009 whereby thehusband of the petitioner one Selvaraj was detained under thePrevention of Black Marketing and Maintenance of Supplies ofEssential Commodities Act, 1980, branding him as a Black Marketeer.2.The Court heard the learned Counsel for the petitioner andlooked into the materials available including the order underchallenge.3.It is not in controversy that pursuant to the recommendationsmade by the sponsoring authority that an adverse case in CoimbatoreCivil Supplies CID Crime No.799/2008 was registered against thedetenu for an occurrence that took place on 11.9.2008 at about 0600hours when he was found in possession of 80 bags of PDS rice eachweighing 50 kg. and 53 packets of palm oil each weighing 1 kg, andthe said case came to be registered under Section 6(4) of TNSC (RDCS)Order 1982 read with 7(1)a(ii) of Essential Commodities Act, 1955,and there was another ground case that on 31.1.2009 at about 0600hours, he was also found in possession of 140 bags of PDS rice, andhe was actually arrested, and a case came to be registered in CrimeNo.45 of 2009 by Coimbatore Civil Supplies Criminal InvestigationDepartment under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)a(ii) of Essential Commodities Act, 1955, on perusal and scrutiny ofthe materials available, the detaining authority also recorded itssubjective satisfaction that it was a fit case where he has got to bebranded as a black marketeer since his activities are prejudicial tothe public distribution system, and in order to prevent him fromdoing so, the order has got to be passed, and accordingly made theorder which is the subject matter of challenge in this petition.4.The learned Counsel while advancing arguments on behalf of thepetitioner, raised two points. At first, he took the Court to theparagraph 7 of the order wherein it is stated that as far as theground case was concerned, he was remanded to judicial custody on31.1.2009, and a bail application was filed in the ground case on2.2.2009 before the Judicial Magistrate, Udhagamandalam, inC.M.P.No.506/2009, and the same was dismissed on 6.2.2009. He alsofurther pointed out that the authority has observed that there wasreal possibility of his coming out on bail by filing another bailapplication before the same Court or higher Court in future in theabove case. 5.The learned Counsel would further add that once the bailapplication filed by him in the ground case was dismissed on6.2.2009, the order under challenge came to be made on 8.2.2009,shortly thereafter. The learned Counsel pointing to the same wouldsubmit that on the day when the order came to be passed, bailapplication filed earlier was dismissed; that it is also an admittedposition that no bail application was pending that time, and under https://hcservices.ecourts.gov.in/hcservices/ such circumstances, the observation made by the authority that therewas a real possibility of the detenu coming out on bail was actuallywithout any basis at all, and it would suffice to call the order asinfirm. 6.The learned Counsel also took the Court to page Nos.46 and 47of the booklet, wherein it is stated that the rice under question wasactually recovered on 31.1.2009 at about 1130 hours as could be seenfrom the seizure mahazar, but Column No.6 would indicate that thesame was sent to the Court at about 1030 hours. The learned Counselwould further add that had it been true that it was actuallyrecovered at about 1130 hours, there was no question of sending it by1030 hours to the Court; that had the authority really scrutinizedthe material proper, they would have called for clarification, butfailed to do, and hence the order has got to be set aside.7.The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made. 8.After scrutiny of the materials available, this Court has tonecessarily agree with the learned Counsel on both the grounds. Asfar as the first ground is concerned, admittedly, there was no bailapplication pending on the day when the order came to be passed on8.2.2009. It could also be seen that the bail application originallyfiled was dismissed on 6.2.2009, and thus the observation made by theauthority that there was real possibility of the detenu coming out onbail was without any basis or reason or material at all. 9.As far as the second ground is concerned, as rightly pointedout by the learned Counsel, page Nos.46 and 47 of the bookletcontained the seizure mahazar. As could be seen from the document,the time of the seizure of PDS Rice from the detenu is shown as atabout 1130 hours on 31.1.2009. But Column No.6 would indicate thatit was sent to the Court at about 1030 hours itself. Therefore it isa matter of surprise to note that had it been true that the recoverywas made as per the mahazar at about 1130 hours, then there is noquestion of sending it to the Court at 1030 hours. In suchcircumstances a duty is cast upon the detaining authority to call forclarification, but failed to do. Hence the order has become infirmand it is liable to be set aside.10.Accordingly, this habeas corpus petition is allowed settingaside the order of the second respondent. The detenu is directed tobe set at liberty forthwith unless his presence is required inconnection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.Registrarnsv https://hcservices.ecourts.gov.in/hcservices/ To:1.The Secretary to Government Food and Consumer ProtectionDepartment Chennai 600 009.2.The District Magistrate andDistrict Collector The Nilgiris District3.Additional Secretary Government of India Ministry of Consumer Affairs Food and Public Distribution Department of Consumer Affairs Krishi Bhavan, New Delhi4.The Joint Secretary to Government, Public (Law & order) Fort St.George, Chennai-9.5.The Superintendent of Police,Central Prison, Coimbatore.6.The Public Prosecutor High Court, Madras.1 cc To Mr.M.Devendran, Advocate, SR.29 HCP No.312 of 2009mbs(co)pmk.20.7.2009