D.Krishnaveni 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.445 OF 2009D.Krishnaveni ...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,Salem3.The Union of India rep. By its Secretary to Government, Food and Consumer Protection Department, Ministry of Consumer Affairs Public Distribution, Government of India, New Delhi. ..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 husbandnamely Thiru R.Dhamodharan, aged 41 years, Son of Ramasamy, detainedunder Act 7 of 1980 vide detention order dated 19.3.2009 on the fileof the 2nd respondent herein made in CMP.No.6/PBMMSEC Act/2009 (J3)quash the same and consequently direct the respondents herein toproduce the body and person of the said detenu before this Court andthereafter set him at liberty from Central Prison, Salem. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Ms.R.SubadradeviFor Respondents 1 & 2: Mr.N.R.Elango Additional Public Prosecutor For Respondent No.3 : Mr.K.Ravindranath SCCG ---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.6/PBMMSEC Act/2009 (J3) dated 19.03.2009 whereby thehusband of the petitioner namely R.Dhamodharan was ordered to bedetained under the provisions of Prevention of Black Marketing andMaintenance of Supplies of Essential Commodities Act, 1980 brandinghim as a black marketeer.2. The affidavit in support of the petition along with all thematerials including the order under challenge are perused. TheCourt heard the learned Counsel for the petitioner.3. It is not in controversy that the petitioner's husbandR.Damodharan pursuant to the registration of the three adversecases, (1) registered by the Salem Civil Supplies CID in CrimeNo.460/2005 under section 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 for the allegationthat on 28.7.2005 the detenu and has accomplice took on lease ofTamilan Rice Mill and Oil, Flour Mill situated at Ayyampalayamvillage, Attur Taluk belonging to one Thiru. Palanivel and hoardedthe 9 bags of ration, each weighing about 75 kgs , 17 bags of abouteach weighing about 50 kgs, 19 kgs of ration boiled rice eachweighing but 75 kgs 227 bags of ration rice each weighing about 50kgs in the above mill premises; (2) registered by Krishnagiri CivilSupplies CID in Crime No.79 of 2008 under section 6(4) of TNSC(RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Comodities Act1955 for the allegation that on the detenue attempted to smuggle 240bags of Public Distribution System boiled rice each weighing 50 kgsto Karnataka State in Tarus Lorry and (3) registered by the SalemCivil Supplies CID in Crime No.68/2009 under section 6(4) of TNSC(RDCS) Ordr 1982 read with 7(1)(a)(ii) of Essential Commoditeis Act1955 alleging that on 13.2.2009 the detenue and his accomplicehoarded 10 bags of ration rice each weighing 50 kgs near KilanguMill Manjini Road, Attur and also there was a ground case registeredby Salem Civil Supplies Criminal Investigation Department in CrimeNo.98/2009 under section 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commoditeis Act 1955 for the allegation that https://hcservices.ecourts.gov.in/hcservices/ the police made a raid on 11.3.2009 at Attur-Chennai Main Road andon reliable information that ration rice was hoarded by the twopersons near Attur Modern Rice Mill they proceeded at 10.00 hoursand found two persons, on seeing the police, they tried to escape,the Police surrounded and caught hold one of them and when enquiredhe stated that he purchased the ration rice intended to thecardholders for the past few days from the Attur side by payingRs.3/- per kilo and packed it 60 bags each weighing about 50 kgs andhoarded it near roadside bush near modern rice mill with intentionof smuggling the same and black marketting in higher price inKarnataka State the Salem Food Cell caught hold of him. TheInspector of Police seized 60 bags of Public Distribution Systemration rice each weighing about 50 kgs which was hoarded by thedetenu under a cover of mahazar on 11.3.2009 at 11.45 hours. Onscrutiny of the materials available, the detaining authorityrecorded its subjective satisfaction that the activities of thedetenu were prejudicial to the maintainability of the PublicDistribution System and in order to prevent him from indulging insuch activities in future, it became necessary to make the order ofdetention, made the order accordingly, which is the subject matterof challenge.4. Assailing the order, the learned counsel for the petitionerurged two grounds.(a) Firstly, the post detention representation was made to theCentral Government on 31.3.2009 though it was received andacknowledged by the said Government it was neither been decided norwas intimated to the detenu yet.(b) Secondly, the Board came to be constituted on 21.4.2009 andan intimation as to the constitution of the Board was served uponthe detenu at Salem on 17.4.2009. 18.4.2009 and 19.4.2009 beingSaturday and Sunday- holidays, he was brought to Madras on 20.4.2009i.e., on the next day. Thus, no sufficient opportunity was given tothe detenu to effectively defend or putforth his case before thedisciplinary authority. In support of the above said contention,the learned counsel relied on the judgment of the Division Benchmade in HCP No.1411/2007 dated 17.3.2008. Under such circumstances,on these two grounds, the order of detention has got to be setaside.5. The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made.6. As stated above, the order under challenge came to be passedon the recommendation made by the sponsoring authority and threeadverse cases and a ground case were registered against the detenu. https://hcservices.ecourts.gov.in/hcservices/ It is not in controversy that the ground case came to be registeredin Crime No.98/2009 on 11.3.2009 that the detenu was found to be inpossession of 60 bags of Public Distribution System rice. It iswell admitted in the course of the counter affidavit filed by thethird respondent that a representation was made by the detenu on31.3.2009 and the same was also received but nowhere it is found inthe course of the entire counter that it was neither considered norany orders passed but it could be seen from paragraph 4, despitethree reminders addressed to the State Government, they could notget the record papers in that regard, therefore, order could not bepassed. Thus, from the candid admission made in the course of thecounter, there was a representation made on 31.3.2009 and theCentral Government also received the same but it has not beendisposed of yet. So far as the detenu is concerned, he has to showthat post detention representation was sent and the same wasalso received by the authority and it is not his look out what wasthe actual reason which made the authorities not to dispose it of.Now, the reason adduced by the third respondent, despite reminderthey could not get papers in time and hence, it was not disposed ofcannot be suffice either in law or it could be seen as a reason inso far as the detenu is concerned for the delay caused. If there isunreasonable delay caused or the representation made is not disposeof properly as expected in law, prejudicial would be caused only tothe detenu. Under such circumstance, the contention putforth bythe counsel for the third respondent cannot be countenanced. 7. As far as the other contention made by the learned counselfor the petitioner is concerned, the learned counsel for the Statein his reply would submit that actually a message was given to thedetenu on 13.4.2009 itself sufficiently informing him as to theConstitution of the Board and that he has to appear before the Boardon 21.4.2009. Therefore, the contention of the learned counsel forthe 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 in this regard cannot becountenanced.8. So far as the second ground is concerned, the Court has toreject the contention putforth by the learned counsel for thepetitioner. On the first ground, the Court has to necessarily agreewith the learned counsel for the petitioner. Under thesecircumstances, this Court is of the considered opinion that theorder of detention suffers from infirmity and it is liable to be setaside.9. Accordingly, this habeas corpus petition is allowed setting https://hcservices.ecourts.gov.in/hcservices/ aside 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,Salem3.The Superintendent,Central Prison,Salem.4.The Joint Secretary to Government,Public (Law and Order) Fort Saint George, Chennai-9.5. The Secretary to Government, Food and Consumer Protection Department, Ministry of Consumer Affairs Public Distribution, Government of India, New Delhi. 6.The Public Prosecutor,High Court, Madras.+1cc to Mr.K.Ravindranath,SCCG SR 29699+1cc to Mr.S.Haja Mohideen Gisthi,ACGSC Sr 29573GV(CO)km/22.7.HCP.NO.445 OF 2009