A.Ganesan v. The District Collector & District Magistrate, Kancheepuram District, Kancheepuram & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:08.07.2009CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMANDTHE HON'BLE MR.JUSTICE C.S.KARNANHCP.NO.413 OF 2009A.Ganesan ...PetitionerVs.1.The District Collector & District Magistrate,Kancheepuram District,Kancheepuram.2.The Secretary to Government, Food, Co-operation & Consumer Protection Dept., Secretariat, Chennai-9.3.The Additional Secrtary to Government,Food and Consumer Protection Department,Govt. of India,New Delhi 110 001.4.The Inspector of Police, Civil Supplies CID Thruvannamalai, Kancheepuram Unit ..RespondentsPetition filed under Article 226 of the Constitution ofIndia for the issuance of a writ of Habeas Corpus directing therespondents to produce the detenue Veeraperumal, Son of Ganesan aged23 who is detained in Central Prison,Puzhal,Chennai in pursuance ofdetention order dated 4.2.2009 in No.M6.No.01/2009 before this Courtto call for the records, set aside the order and set the detenue atliberty forthwith. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.R.C.Paul Kanagaraj For Respondents 1 ,2& 4: Mr.N.R.Elango Additional Public Prosecutor For Respondent No.3 : Mr.S.Haja Mohideen Gisthi ACGSC O R D E R(Order of the Court was made by M.CHOCKALINGAM,J)Challenge is made to an order the first respondent inM.O.D.No.01/2009 dated 4.2.2009 whereby the son of the petitionernamely Veeraperumal was ordered to be detained under the provisionsof Prevention of Black Marketing and Maintenance of Supplies ofEssential Commodities Act, 1980 branding him as a black marketeer.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 on4.2.2009 pursuant to the registration of the two adverse cases namely(1) Thiruvannamalai Civil Supplies Criminal Investigation DepartmentSupplies, Crime.No.701/2008 under Section 6(4) of TNSC (RDCS) OrderNo. 1982 and r/w 7(1)(a)(ii) Essential Commodities Act 1955 fortransporting 30 bags of PDS rice each weighing about 50 kgs in a TataMini Van bearing Regn.No.TN-25-V-1197; (2) Thiruvannamalai CivilSupplies Criminal Investigation Department Supplies inCrime.No.712/2008 under Section 6(4) of TNSC (RDCS) Order No. 1982and r/w 7(1)(a)(ii) Essential Commodities Act 1955 for allegedpossession of 15 bags of PDS rice each weighing about 50 kgs andalso a ground case in Civil Supplies CID, Thiruvannamalai in CrimeNo.18/2009 under Sec.6(4) of TNSC (RDCS) order 1982 and read with 7(1)(a)(ii) of Essential Commodities Act 1955 r/w 403, 353, 506(ii)and 307 IPC stating that on 11.1.2009, when the Inspector of Police,Civil Supplies Criminal Investigation Department, ThiruvannamalaiUnit, was engaged in raid in detecting hoarding and smuggling ofessential commodities in Karanimandapam in Uthiramerur – VandavasiRoad, he found the detenu in possession of 40 bags of PDS rice eachweighing 50 kg. and when the police attempted to arrest, the detenutried to attack the Head Constable on his head with an iron rod butthe Head Constable bend and escaped from the attack. The PDS ricewas actually smuggled with the intention to make wrongful gain andthe PDS rice was seized under a mahazar and he was also arrested, anda 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 the https://hcservices.ecourts.gov.in/hcservices/ materials 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. Assailing the order under challenge, the learned counselwould submit that the order came to be passed on 4.2.2009 andfollowing the same two representations were made, one to the secondrespondent and the other to the third respondent both on 18.2.2009and both the representations have not been considered yet. Secondly,the consistent case of the department was that on 11.1.2009, thedetenu was found in possession of 40 bags of raw rice and they wereactually placed in the godown and thereafter the same was placedbefore the analyst. A perusal of analyst certificate would indicatethat the rice placed before the Analyst is a raw rice. If to be sothere was vital discrepancies on the material particulars. Thedetaining authority should have called for clarification but failedto do so. Even a persual of the certificate would indicate that thereis a specific column stating " Certified that the sample has beenanalysed by me and it...... to the tolerance limits of uniformspecifications" but on perusal of the quality certificate in Page 151of the booklet, it is seen that the said column was not filled upand in the column meant for percentage it was written as 'PDS rice'and that would not satisfy the requirements and it cannot be taken asa quality certificate speaking about the nature of the sample thatwas taken. Added further learned counsel, in the instant case, areading of the order of detention would indicate that on arrest, thefather of the detenu was informed about the arrest by sending twotelegraphic message but those copies of the telegraphic message werenot served upon the detenu. The copies of the documents which wererelied on should have been served on the detenu but it was not doneso. Thus, the order is infirm 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. Concededly, the order of detention came to be passed by thefirst respondent terming the detenu, son of the petitioner, as aBlack Marketeer on 4.2.2009 on the strength of two adverse cases andone ground case. It is contended by the learned counsel for thepetitioner that two representations were made, one to the secondrespondent and the other to the third respondent on 18.2.2009 and areply was given by the Counsel for the State that the representationsent to the second respondent was actually considered and rejectedon 2.3.2009 and the same was also sent to the detenu on 3.3.2009 andthey have got proof therefor. Hence, in so far as that part of the https://hcservices.ecourts.gov.in/hcservices/ contention as to the non-consideration of the representation sent bythe detenu to the second respondent is concerned, it cannot beaccepted. But in respect of the other part namely, the non-consideration of the representation made to the 3rd respondent isconcerned, there is proof available for service. Even this time, thethird respondent is not coming forward with any reply as to theconsideration of the said representation. The non-reply of the 3rdrespondent even after a period of 5 ½ months of the pendency of theapplication,in the opinion of the Court, would be suffice to lead toan inference that the representation which was actually sent bydetenu on 18.2.2009 to the third respondent remains not considered.7. So far as the other two contentions are concerned, the Courtis able to see sufficient force. As could be seen from the availablematerials and also in the order of detention, the order came to bepassed on the strength of two adverse case and in particular oneground case in Crime No.18/2009 stating that on 11.1.2009 the detenuwas found in possession of 40 bags of boiled rice and the same wasseized under a mahazar and after it was kept in the custody of thegodown, it was sent to analyst seeking qualify certificate. Thequality certificate is found in page No. 151 of the booklet. Aperusal of the quality certificate would indicate that what wasplaced before the analyst was only raw rice and nowhere it showsthat it was boiled rice. Needless to say, it is a vital discrepancyon material particular. Under such circumstances, duty is cast uponthe detaining authority to call for clarification but they failed todo so. In the given case, the rice which was seized from the detenuwas placed before the analyst for the purpose of giving qualitycertificate and there is a specific column in the qualitycertificate stating " Certified that the sample has been analysedby me and it......... to the tolerance limits of uniformspecifications". On perusal of the quality certificate in Page 151of the booklet, it could be seen that the said column is not filledup and it was left blank. This column should indicate whether therice was PDS or not but it remains blank. Thus, it can be wellstated that the certificate for which purpose it was issued did notserve the purpose. 8. Though it was claimed that immediately after the arrest, thereason for the arrest was made known to the father of the detenu bytwo telegraphic messages, the copies of those messages were notserved upon the detenu. Needless to say, in a given case like this,where the detention order came to be passed, the relied on documentsshould be served upon the parties but in this case the copies of thedocuments which were relied on were not served upon the detenu. 9. All the grounds urged by the learned counsel for thepetitioner would hold good. This Court can well comment that it wasa denial of right which is available to him under the Constitution. https://hcservices.ecourts.gov.in/hcservices/ Under the circumstances, this Court is of the considered opinion thatthe order suffers from infirmity and it is liable to be set aside.10. Accordingly, this habeas corpus petition is allowed settingaside the order of the first 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.RegistrarVsiTo1. The District Collector & District Magistrate,Kancheepuram District,Kancheepuram.2.The Secretary to Government, Food, Co-operation & Consumer Protection Dept., Secretariat, Chennai-9.3.The Additional Secretary to Government,Food and Consumer Protection Department,Govt. of India,New Delhi 110 001.4.The Inspector of Police, Civil Supplies CID Kancheepuram Unit Tharuvannamalai,5.The Public Prosecutor, High Court, Madras.HCP.NO.413 OF 2009ka(co)pmk.22.7.2009.