Thangavel v. The State of Tamil Nadu

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.418 OF 2009Thangavel ...PetitionerVs.1.The State of Tamil Nadu, rep. by its Secretary to Government,, Cooperatiion,Food and Consumer Protection Dept., Fort St.George, Chennai.2.The District Magistrate and District Collector,Salem District. 3.The Union of India rep. By its Secretary to Government, Food and Consumer Protection Department, Ministry of Consumer Affairs Public Distribution, Government of India, NewDelhi. ..RespondentsPetition filed under Article 226 of the Constitution ofIndia for the issuance of a writ of Habeas Corpus calling for theentire records leading to the detention of the petitioner's Sonnamely Thiru Vadivel, aged 49 years, Son of Thangavel, detained underAct 7 of 1980 vide detention order dated 19.3.2009 on the file of the2nd respondent herein made in C.M.P.No.7/PBMMSEC Act/2009 (J3) quashthe same and consequently direct the respondents herein to producethe body and person of the said detenu before this Court andthereafter set him at liberty from Central Prison, Salem.For petitioner : Ms.R.SubadradeviFor Respondents 1 & 2: Mr.N.R.Elango Additional Public Prosecutor For Respondent No.3 : Mr.K.Ravindranath SCCG --- 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 an order of the second respondent made inC.M.P.No.7/PBMMSEC Act/2009 (J3) dated 19.03.2009 whereby the son ofthe petitioner namely Vadivelu was ordered to be detained under theprovisions of 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 on therecommendations made by the sponsoring authority that the case cameto be registered against the detenu in Crime No.99/2009 under section6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of EssentialCommodities Act 1955 in Civil Supplies Salem, when he was found inpossession of 200 bags of Public Distribution System rice. Onscrutiny of the materials available, the detaining authority recordedits subjective satisfaction that the activities of the detenu wereprejudicial to the maintainability of the Public Distribution Systemand in order to prevent him from indulging in such activities infuture, it became necessary to make the order of detention, made theorder accordingly, which is the subject matter of challenge.4. Advancing the arguments on behalf of the petitioner thelearned counsel made the following points for consideration.(a) Firstly, according to the department, the detenu was found inpossession of 20 bags of PDS rice on 12.3.2009 The order came to bepassed on 9.3.2009. No bail application was filed before any Court oflaw. While the matter stood thus, the detaining authority haveobserved in its order, if the detenu comes out on bail he likelyindulge in such activities. Thus, the said observation when no bailapplication was filed or pending, and even without observing whetherthere was any possibility of coming out on bail, was actually withoutany basis or reason whatsoever. This would indicate the non-application mind on the part of the authorities.(b) Secondly, a representation was actually made to the CentralGovernment on 26.3.2009 and it was received on 31.3.2009. Anintimation was given that a representation was rejected on 12.5.2009.The learned counsel would submit that there was delay and only anintimation of rejected was served upon the detenu and not an order.So long as the order of rejection was not served upon the detenu, thedetenu was unable to understand whether the representation given byhim was considered properly or not. https://hcservices.ecourts.gov.in/hcservices/ (c) Thirdly, the order came to be passed on 19.3.2009. The Boardcame to be constituted on 21.4.2009 and an intimation as to theconstitution of the Board was served upon the detenu at Salem on17.4.2009, 18.4.2009 and 19.4.2009 being Saturday and Sunday-holidays, he was brought to Madras on 20.4.2009 i.e., on the nextday. Thus, no sufficient opportunity was given to the detenu toeffectively defend or putforth his case before the disciplinaryauthority. In support of the above said contention, the learnedcounsel relied on the judgment of the Division Bench made in HCPNo.1411/2007 dated 17.3.2008. Under such circumstances, on thesethree grounds, the order of detention 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. In so far as the first contention is concerned, the detenu wasfound in possession of Public Distribution System rice on 12.3.2009and the order of detention came to be passed on 19.3.2009, in themeantime, no application for bail made by the detenu pursuant to hisarrest. In the instant case, a reading of the order under challengewould clearly indicate that the authority has not even stated thatthere was real possibility or imminent possibility of the detenucoming out on bail. On the contrary, it was observed, if he comesout on bail, there is likelihood to indulge in such activities. Atthis juncture, the Court has to point out two points. Firstly, onthe day when the order of detention came to be passed, no bailapplication was filed nor was it pending before any Court ofcriminal law, secondly, the authority has not even stated whetherthere was real or imminent possibility but it has observed if hecomes out on bail, there is likelihood to indulge in suchactivities. Thus, it is quite clear that there was non-applicationof mind. 7. In so far as the second ground is concerned, a representationwas made on 26.3.2009 to the Central Government the same wasreceived on 31.3.2009 and also an intimation was given on 12.5.2009were all admitted position. In the instant case, though therepresentation was received on 31.3.2009, actually an intimationwas given on 12.5.2009 that the same was rejected and delay was alsonoticed but what was served upon the detenu was intimation ofrejection and not the order of rejection. So long as the order ofrejection was not served upon the detenu, the detenu cannotunderstand whether the representation made by him was properlyconsidered or not. Therefore, the service of intimation of rejectionof representation would not be suffice and that ground would beavailable to the petitioner. 8. As far as the third ground is concerned, the learned counselfor the State in his reply would submit that actually a message was https://hcservices.ecourts.gov.in/hcservices/ given to the detenu on 13.4.2009 itself sufficiently informing him asto the Constitution of the Board and that he has to appear before theBoard on 21.4.2009. Therefore, the contention of the learned counselfor the petitioner that sufficient opportunity was not given to thedetenu to the defend the case, cannot be countenanced. The Court hasto necessarily accept the contention putforth by the learned counselfor the State and the intimation orally given on 13.4.2009 would besuffice. Under such circumstances, the contention putforth by thelearned counsel for the petitioner on that ground is rejected.9. So far as the third ground is concerned, the Court has toreject the contention putforth by the learned counsel for thepetitioner. On the first and second ground, the Court has tonecessarily agree with the learned counsel for the petitioner. Underthese circumstances, this Court is of the considered opinion that theorder suffers from infirmity and 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.RegistrarVsiTo1.The Secretary to Government,, Cooperatiion,Food and Consumer Protection Dept., Fort St.George, Chennai.2. The District Magistrate and District Collector, Salem District.3. The Secretary to Government, Food and Consumer Protection Department, Ministry of Consumer Affairs Public Distribution, Government of India, New Delhi.4. The Public Prosecutor, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/

5. The Superintendent, Central Prison, Salem.6. The Joint Secretary to Government, Public [Law and Order] Department, Fort St.George, Chennai - 9HCP.No.418 of 2009KA(CO)SRA(21/7/2009)