Linga Jyothi v. The Secretary to Government,, Cooperatiion,Food and Consumer Protection Dept., Chennai-9

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:09.07.2009CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMANDTHE HON'BLE MR.JUSTICE C.S.KARNANHCP.NO.722 OF 2009Linga Jyothi ...PetitionerVs.1.The Secretary to Government,, Cooperatiion,Food and Consumer Protection Dept., Chennai-9.2.The District Magistrate and District Collector, Thiruvallur District,3.The Secretary to Government, Ministry of Consumer Affairs, Food and Public Distribution, Department of Consumer Affairs, Government of India, Krish Bhavan, New Delhi...RespondentsPetition filed under Article 226 of the Constitution ofIndia for the issuance of a writ of Habeas Corpus directing therespondents to produce the detenue Vijayan @ vijayakumar, son ofArunachalam aged about 44 years, who is detained in Central Prison,Puzhal, Chennai in pursuance of detention order dated 24.4.2009 inMemo No.04/Black Marketing Act/2009 before this Court to call for therecords, set aside the order and set the detenue at liberty forthwith. For petitioner: Mr.V.Parthiban For Respondents : Mr.N.R.Elango,A.P.P. for R1 & R2 Mr.M.Devendran, SPCCG for R3. 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 the second respondent made in MemoNo.04/Black Marketing Act/2009 dated 24.4.2009 whereby the husband ofthe petitioner one Vijayan @ Vijayakumar was ordered to be detainedunder 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. The Courtheard the learned Counsel for the petitioner.3. Admittedly, pursuant to the recommendation made by thesponsoring authority that two adverse cases (1) registered by theCivil Supplies CID, Thiruvallur in Crime No.433/2007 under section 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955 forthe allegation that on 16.10.2008 the detenu was found in possessionof 100 bags of Public Distribution System rice (2)registered by the Civil Supplies CID, Thiruvallur in CrimeNo.172/2009 under section 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955 for the allegation that on 9.4.2009 the detenuwas found in possession of 200 bags each containing 50 kgs of PublicDistribution System rice and one ground case registered in CrimeNo.177/2009 under section 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955 and 403, 353 and 307 of I.P.C. that the detenuhe was found in possession of 30 bags of P.D.S. rice and on scrutinyof the materials, 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. Advancing the arguments on behalf of the petitioner learnedcounsel raised two points. The post detention representation was madeon 30.4.2009 and on consideration of the same, the order of rejectioncame to be passed on 5.1.2009 and a telegraphic message was actuallyserved upon the detenu. Learned counsel would further ad that thesecommunications would not be suffice to satisfy the law and on thatground the detention order would suffer. 5. Secondly, the authority has pointed out that when thedetention order came to be passed on 24.4.2009, the bail applicationfiled by the detenu in Crl. M.P.No.638/2009 was already dismissed on18.4.2009 and no bail application was pending before any Court. But https://hcservices.ecourts.gov.in/hcservices/ the authority has stated in the order "If he comes out on bail, hewill indulge in such further activities in future...". The authorityhas not even stated whether there was any imminent possibility orrule available which impelled him to pass such an order. Thus, itwould be quite clear that there was no application of mind on thepart of the authority. Under such circumstances, the order willsuffer on that ground also. Thus, the order is infirm and it has gotto be set aside.6. The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made. 7. As stated above, the order under challenge came to be passedon 24.4.2009 on the strength of the recommendation made by thesponsoring authority that the detenu has indulged in two adversecases and one ground case in Crime No.177/2009 registered by theCivil Supplies, Thiruvallur where he was found in possession of 30bags of PDS rice. It is not in dispute that he made representation tothe Central Government on 30.4.2009 and it was also considered and atelegraphic communication was addressed on 5.6.2009. The contentionputforth by the learned counsel for the petitioner cannot becountenanced for the simple reason that the telegraphic message wouldindicate that, a speaking order of rejection was made containing allthe reasons therefor. 8. The order of rejection was communicated through thetelegraphic message and one cannot come to the conclusion that theorder of rejection was only an intimation. In the instant case, itwas not the intimation but the telegraphic message contains theentire order on rejection. Hence, the first ground has got to berejected. 9. In so far as the second ground is concerned, the Court isable to see force in the contention putforth by the learned counselfor the petitioner. It is not on controversy that the detenu movedfor bail in respect of the ground case in Crl.M.P.No.638/2009 on thefile of the District Sessions Division,, Tiruvallur and the same wasdismissed on 18.4.2009 and the detention order came to be passed on24.4.2009 i.e., within a short span of time. The authority has notstated that whether there was any possibility either imminent orreal possibility of the petitioner to come out on bail. On thecontrary even without considering the same it was simply stated " ifhe comes out on bail, he will indulge in such further activities infuture ........" which would clearly indicate the non-application ofmind. Therefore, without any hesitation, the order of detention hasgot to be set aside. https://hcservices.ecourts.gov.in/hcservices/

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., Chennai-9.2. The District Magistrate and District Collector, Thiruvallur District.3. The Secretary to Government, Ministry of Consumer Affairs, Food and Public Distribution, Department Consumer Affairs, Government of India, Krish Bhavan, New Delhi.4. The Superintendent, Central Prison, Puzhal, Chennai. (in duplicate for communication to detenue)5. The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai -9.6. The Public Prosecutor, High Court, Madras.HCP.NO.722 OF 2009 BV(CO)RVL 21.07.2009