P.Sekaran v. The Secretary to Government Cooperation, Food and Consumer Protection Department Secretariat, Chennai 600 009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 8-7-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANHCP No.329 of 2009P.Sekaran.. Petitioner vs1.The Secretary to Government Cooperation, Food and ConsumerProtection Department Secretariat, Chennai 600 009.2.The District Magistrate andDistrict Collector Coimbatore3.The Secretary to Government Food and Consumer ProtectionDepartment Government of India Krishi Bhavan, New Delhi 110 001... Respondents Habeas corpus petition filed under Article 226 of theConstitution of India praying for a writ of habeas corpus calling forthe records in connection with the order of detention passed by thesecond respondent dated 28.2.2009 in Cr.M.P.No.04/B.M/2009 (E4)against the petitioner's son Lal @ Srilal, S/o. P.Sekaran @ Sekar,aged about 24 years who is confined at Central Prison, Coimbatore andset aside the same and direct the respondents to produce the detenubefore this Court and set him at liberty.For Petitioner: Mr.V.ParthibanFor Respondents: Mr.N.R.Elango Additional PublicProsecutor for RR1 & 2 Mr.M.Devendran SPCCG for R3ORDER(Order of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to an order of the second respondent made inCr.M.P.No.04/B.M/2009 (E4) dated 28.2.2009, whereby the son of the https://hcservices.ecourts.gov.in/hcservices/ petitioner namely Lal @ Srilal was ordered to be detained under theprovisions of the Prevention of Black Marketing and Maintenance ofSupplies of Essential Commodities Act, 1980 branding him as a blackmarketeer.2.The affidavit in support of the petition along with all thematerials including the order under challenge are perused. The Courtheard the learned Counsel for the petitioner.3.Concededly, the order under challenge came to be passed on28.2.2009 pursuant to the registration of three adverse cases namely(1) Pollachi Civil Supplies Criminal Investigation Department CrimeNo.778/2008 dated 21.11.2008, under Sec.6(4) of TNSC (RDCS) order1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 foralleged possession of 90 bags of PDS boiled rice; (2) Pollachi CivilSupplies Criminal Investigation Department Crime No.816/2008 dated29.12.2008 under Sec.6(4) of TNSC (RDCS) order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 for alleged possession of 2bags of PDS rice; and (3) Pollachi Civil Supplies CriminalInvestigation Department Crime No.24/2009 dated 18.1.2009 under Sec.6(4) of TNSC (RDCS) order 1982 read with 7(1)(a)(ii) of EssentialCommodities Act 1955 for alleged possession of 119 bags of PDS boiledrice and 55 bags of PDS raw rice and also a ground case in PollachiCivil Supplies Criminal Investigation Department Crime No.45/2009under Sec.6(4) of TNSC (RDCS) order 1982 read with 7(1)(a)(ii) ofEssential Commodities Act 1955 stating that on 6.2.2009 at about 1600hours, the Sub Inspector of Police, Civil Supplies CriminalInvestigation Department, Pollachi Unit, when he was engaged in raidin detecting hoarding and smuggling of essential commodities inGopalapuram area, found the detenu in possession of 40 bags of PDSrice each weighing 50 kg. and it was actually smuggled with theintention to make wrongful gain by selling at Kerala State, and thePDS rice was seized under a mahazar, and he was also arrested, andthe case came to be registered in the above crime number. Allmaterials in respect of those cases were placed before the detainingauthority along with the recommendation. On scrutiny of thematerials available, the detaining authority was satisfied that theactivities of the detenu were prejudicial to the public distributionsystem, and hence in order to prevent him from indulging in suchactivities, an order of detention has got to be made under theprovisions of the Act, and accordingly made the order which is thesubject matter of challenge in this petition.4.The learned Counsel while advancing arguments on behalf of thepetitioner raised the following two points. (i) The order under challenge came to be passed on 28.2.2009. Arepresentation was made on 13.3.2009 to the Central Government, andthe same was rejected on 15.5.2009 after a delay of two months. Onlyan intimation was served on him and not the order of rejection. Thusthe order came to be passed not only with a delay of two months, butalso the detenu was served with only the decision of rejection andnot an order of rejection. Thus the detenu was unable to understandwhether the representation was rejected after giving due https://hcservices.ecourts.gov.in/hcservices/ consideration or not, and under the circumstances it can be wellstated that the detenu was not given opportunity of understandingwhat was actually the order made against him. (a) The learned Counsel in support of his contention relied on adecision of the Kerala High Court reported in 2004 CRI. L.J. 3797(LEKHA NANDAKUMAR V. JT. SECY. TO G.O.I., MINISTRY OF FINANCE). (ii) As far as three adverse cases and one ground case areconcerned, he filed bail applications in all the cases and all werepending. At that time, even before the results of the bailapplications are made known, the authority even without observingwhether there was real possibility or imminent possibility of hiscoming out on bail, has observed that if he comes out on bail, hewould indulge in such activities, and thus it would clearly indicatethat there was non-application of mind for two reasons. Firstly, allthe bail applications were pending. Even before results in thosebail applications were made, the impression that was passing in themind of the authority that he would come out on bail was only anexpression of its impression. Secondly, the possibility of hiscoming out on bail was not even considered. Thus the order isinfirm, and it has got to be set aside.5.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made. 6.It is not in controversy that the order of detention came tobe passed. As rightly pointed out by the learned Counsel, the ordercame to be passed on 28.2.2009. A representation was made to theCentral Government on 13.3.2009, and it was actually disposed of on15.5.2009 by an order. Now it could be seen that when an order ofrejection was passed, a duty is cast upon the authority to serve theorder. But, what is actually served upon him is only an intimation,and intimation would not definitely serve the purpose. The lawexpects service of order of rejection on the party, and that too aspeaking order containing reasons therefor, in order to enable theparty to understand whether the representation was properlyconsidered or not. In the instant case, no such opportunity wasgiven to the detenu thus enabling him to understand so. But, it wasonly an intimation and not an order. This Court can well commentthat it was a denial of a right which is available to him under theConstitution. Under the circumstances, it can be declared that theorder is infirm.7.As far as the second ground is concerned, it is an admittedposition that in respect of three adverse cases and ground case, bailapplications are filed, and all those bail applications were pendingduring the relevant time when the order under challenge came to bepassed on 28.2.2009. But the authority has stated in its order thatif he comes out on bail, there is possibility of the detenu indulgingin such activities in future. Now it remains to be stated that whilebail applications were pending, the observation by the authority thatif he comes out on bail was only in anticipation of an order of bail https://hcservices.ecourts.gov.in/hcservices/ in favour of the detenu, and it is actually premature and without anybasis. It was only an expression of the impression which was passingin the mind of the authority. Added further, the authority has noteven considered whether there was any possibility of the detenucoming out on bail or imminent possibility which are not made knownin the order. In such circumstances, this Court is of the consideredopinion that the order suffers from infirmity, and it is liable to beset aside.8.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.Registrar nsvTo:1.The Secretary to Government Cooperation, Food and ConsumerProtection Department Secretariat, Chennai 600 009.2.The District Magistrate andDistrict Collector Coimbatore3.The Secretary to Government Food and Consumer ProtectionDepartment Government of India Krishi Bhavan, New Delhi 110 001.4. The Superintendent, Central Prison, Coimbatore.5.The Public Prosecutor High Court, Madras.+1 cc to Mr.V.Parthiban, Advocate, SR.No.29881+1 cc to Mr.M.Devendran, Advocate, SR.No.29584 HCP No.329 of 2009MSM {CO}TP/20.7.2009.