G.Chandrasekar v. The Secretary to GovernmentCooperation, Food and ConsumerProtection DepartmentSecretariat, Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 9-7-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANHCP No.609 of 2009G.Chandrasekar.. Petitioner vs1.The Secretary to GovernmentCooperation, Food and ConsumerProtection DepartmentSecretariat, Chennai 9.2.The Commissioner of Police Tiruchirappalli City.3.The Secretary to GovernmentFood and Consumer ProtectionDepartment Ministry of Consumer Affairs,Food and Public DistributionSystem, Government of India New Delhi 110 001... RespondentsHabeas corpus petition filed under Article 226 of theConstitution of India praying to issue a writ of habeas corpuscalling for the records in connection with the order of detentionpassed by the second respondent dated 28.2.2009 inC.P.O/T.C/I.S/B.M/D.O.No.01/2009 against the petitioner's brotherSelvam, son of Maruthai @ Ganesan, aged about 43 years who isconfined at Central Prison, Tiruchirappalli and set aside the sameand direct the respondents to produce the detenu before this Courtand set him at liberty.For Petitioner: Mr.V.ParthibanFor Respondents: Mr.N.R.Elango Additional Public Prosecutor 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 the second respondent made inC.P.O/T.C/I.S/B.M/D.O.No.01/2009 dated 28.2.2009, whereby one Selvam,the brother of the petitioner herein, was ordered to be detainedunder the provisions of the Black Marketing and Maintenance ofSupplies of Essential Commodities Act, 1980, branding him as a blackmarketeer.2.The affidavit in support of the petition is perused along withthe grounds of attack and also the materials available. The Courtheard the learned Counsel for he petitioner. 3.Admittedly, the order under challenge came to be made by thesecond respondent pursuant to the recommendation made by thesponsoring authority that the detenu is involved in three adversecases namely (1) Tiruchirappalli CS CID Cr.No.721/2007 under Clause 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)a(ii) of EC Act, 1955; (2)Tiruchirappalli CS CID Cr.No.647/2008 under Clause 6(4) of TNSC(RDCS) Order 1982 r/w 7(1)a(ii) of EC Act, 1955 and (3)Tiruchirappalli CS CID Cr.No.788/2008 under Clause 6(4) of TNSC(RDCS) Order 1982 r/w 7(1)a(ii) of EC Act, 1955 and one ground caseregistered by Tiruchirappalli CS CID in Crime No.91/2009 under Clause6(4) of TNSC (RDCS) Order 1982 r/w 7(1)a(ii) of EC Act, 1955 for anincident that had taken place on 21.2.2009, when he was found inpossession of 40 bags of PDS rice. The detaining authority afterscrutiny of the entire materials has recorded its satisfaction thatthe activities of the detenu were prejudicial to the maintenance ofdistribution of essential commodities to public and apart from this,in order to prevent him from indulging in such activities in future,an order of detention has become necessary, and hence made the order,which is the subject matter of challenge before this Court.4.Attacking the order, the learned Counsel for the petitionerraised the following points:(a) The order came to be passed on 28.2.2009. The incident isshown to have taken place on 21.2.2009, when he was found inpossession of 40 bags of PDS rice, and Crime No.91/2009 came to beregistered by Tiruchirappalli Civil Supplies CID. The authority haspointed out in paragraph 5 of its order that "The bail application inCr.M.P.No.509 of 2009 moved by him before the Judicial MagistrateNo.VI, Tiruchirappalli, for this case is pending. He is very likelyto be coming out on bail in this case." While a bail application waspending before a Court of criminal law, the authority has stated thathe was very likely to be coming out on bail. It was only mereapprehension without any basis at all, and apart from that, what wasthe order to be made by the Judicial Magistrate in that petitionseeking for bail could not be presumed. Hence the order sufferssince it was without any consistent material. (b) In the instant case, the bail application in Cr.M.P.No.509of 2009 was made before the Judicial Magistrate No.VI,Tiruchirappalli, and notice was served on the A.P.P. who in turn https://hcservices.ecourts.gov.in/hcservices/ served a notice on the concerned police calling for its remarks asfound in page 70 of the booklet. The Tamil version of thiscommunication calling for the remarks by the APP from the concernedpolice, was not served upon him, but a copy in English version wasactually served, and hence it would be quite clear that it was one ofthe relied on documents. If to be so, if the authority feels a copyof the English version must be served, then a need arose for servingthe Tamil version also. Only then the party could understand thecontents of the English version. But, he was deterred from doing so.On that ground also, it would suffer. Hence it has got to be setaside.5.Contrary to the above contentions, the learned AdditionalPublic Prosecutor would submit that in the instant case, it is anadmitted fact that a bail application was pending; that what isrequired is only the subjective satisfaction of the detainingauthority; that since bail application was pending that time, theimpression of the authority was that he was likely to be coming outon bail and hence it has stated so; and that nothing could be founddefective on that ground. 6.Added further the learned Additional Public Prosecutor thatwhen a representation was made by the detenu for the Tamil version ofpage 70 of the booklet namely the communication addressed by the APPto the concerned police, two copies were also sent along with thereply dated 30.4.2009, as found in the materials; that under thecircumstances, that cannot be a ground to set aside the order, andhence the petition has got to be dismissed.7.The Court paid its anxious consideration on the submissionsmade.8.The Court after looking into the materials available andhearing the submissions, has to necessarily agree with thepetitioner's case. It is not in controversy that the order underchallenge came to be passed on 28.2.2009. It is also an admittedfact that a bail application in Cr.M.P.No.509/2009 was also pendingbefore the Judicial Magistrate No.VI, Tiruchirappalli, on the daywhen the impugned order came to be passed. After pointing out thependency of the bail application, the authority has stated in itsorder in paragraph 5 as follows:"The bail application in Cr.M.P.No.509 of 2009 moved by himbefore the Judicial Magistrate No.VI, Tiruchirappalli, forthis case is pending. He is very likely to be coming out onbail in this case."From the above, it is clear that actually the authority has come tothe conclusion that an order of bail would be passed in his favour.It would be quite clear that when the bail application was pendingand an order was to be made in future, the detaining authority cannotcome to the conclusion that such an order would be passed in favourof the detenu. Thus, it would be abundantly clear that it was onlyan expression of the impression that was passing in the mind of theauthority and that too without any material whatsoever. Now, the https://hcservices.ecourts.gov.in/hcservices/ contentions put forth by the learned Additional Public Prosecutorcannot be countenanced. 9.As far as the second ground is concerned, the Court is able tosee sufficient force in the same that the translated copies of allthe relevant documents were supplied to the detenu; but, in respectof one of the relied on documents namely the communication addressedby the APP to the concerned police calling for remarks on the bailapplication made by the party, English version of the same wasactually served. The grievance of the detenu was that the Tamilversion was not served upon him. Learned Additional PublicProsecutor brought to the notice of the Court that when the reply wassent, two copies of the Tamil version were sent along with the same.It is true that two copies of the same were actually sent along withthe reply on the representation made by the detenu on 13.4.2009. Butthis would not satisfy the legal mandate. Sec.8 of the Prevention ofBlack Marketing and Maintenance of Supplies of Essential CommoditiesAct reads as follows:"8.Grounds of order of detention to be disclosed to personaffected by the order:- (1) When a person is detained inpursuance of a detention order, the authority making theorder shall, as soon as may be, but ordinarily not laterthan five days and in exceptional circumstances and forreasons to be recorded in writing, not later than ten daysfrom the date of detention, communicate to him the groundson which the order has been made and shall afford him theearliest opportunity of making a representation against theorder to the appropriate Government."Thus, it would be quite clear that the documents must be servedwithin a period of five days from the date of the order. But in theinstant case, the order came to be passed on 28.2.2009. It hasactually been sent only on 30.4.2009. Thus it would be out of time,and it is not in accordance with the mandatory provision as providedunder Sec.8 of the Act. Both the grounds are available to the partyfor getting the order set aside. 10.Accordingly, this habeas corpus petition is allowed settingaside the order of the second respondent, and the detenu is directedto be set at liberty forth unless his presence is required inconnection with any other case.Sd/Assistant Registrar/True Copy/Sub Assistant RegistrarnsvTo:1.The Secretary to Government of TamilnaduCooperation, Food and ConsumerProtection DepartmentSecretariat, Chennai 9. https://hcservices.ecourts.gov.in/hcservices/

2.The Commissioner of PoliceTiruchirappalli City.3.The Secretary to GovernmentFood and Consumer ProtectionDepartment Ministry of Consumer Affairs,Food and Public DistributionSystem Government of India, New Delhi 110 001.4.The Public Prosecutor High Court, Madras.5 The SuperintendentCentral Prison, Trichiarapalli+1CC to Mr.M.Devendran Advocate SR.No.29732+1CC to Mr.C.Prakasam Advocate SR.30171HCP No.609 of 2009CO-BVSRA-20/07/2009