J.Bhasker v. The Secretary to Government, Food and Consumer Protection Department, Chennai

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.723 of 2009J.Bhasker ...PetitionerVs.1. The Secretary to Government, Food and Consumer Protection Department, Chennai – 9.2. The Commissioner of Police, Chennai City Sub Urban Area.3. The Secretary to Government, Food and Consumer Protection Department, Government of India, 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 detenu Paulraj, Son of Jabamani aged 23years who is detained in Central Prison, Puzal, Chennai in pursuanceof detention order dated 23.4.2009 in Memo No.2/Black MarketingAct/2009 before this Court to call for the records, set aside theorder and set the detenu at liberty forthwith.For petitioner : Mr.V.ParthibanFor Respondents: Mr.N.R.Elango, A.P.P. for R1 & R2 Mr.A.S.Vijayaraghavan,ACGSC for R3O R D E R(Order of the Court was made by M.CHOCKALINGAM,J)Challenge is made to the order of the second respondent made inMemo No.2/Black Marketing Act/2009 dated 23.4.2009 whereby thebrother of the petitioner one Paulraj was ordered to be detainedunder the provisions of Prevention of Black Marketing and https://hcservices.ecourts.gov.in/hcservices/ Maintenance 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. Admittedly, pursuant to the recommendation made by thesponsoring authority that two adverse cases (1) registered by theCivil Supplies CID Chennai in Crime No.1848/2008 under Section 6(4)of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955 for theallegation that the detenu was found in possession 25 bags eachcontaining 50 kgs of PDS ration rice (2) registered by the CivilSupplies CID Chennai in Crime No.174/2009 under Section 6(4) of TNSC(RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955 for theallegation that the detenu was found in possession 80 bags eachcontaining 50 kgs of PDS ration rice and one ground case registeredin Crime No.218/2009 by Civil Supplies Central InvestigationDepartment under sections 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955 and 403, 332 and 307 IPC for the allegationthat on 15.4.2009 at 11.00 hours when the Inspector of Police alongwith the police party made an inspection at Kallikuppam area nearAmbattur, they found the detenu arranging the bags in rows nearKallikuppam bus stand and on noticing the police party the detenutried to escape. The police rushed to apprehend him, at that time,the detenu took an iron rod and tried to attack the police but hewas surrounded by the police and was arrested. The detenu was foundin possession of 50 bags each containing 50 kgs of P.D.S. Rice. Onscrutiny of the materials, the detaining authority, after recordingthe satisfaction that the activities of the detenu were prejudicialto the public distribution system and hence, in order to prevent himfrom indulging in such activities, an order of detention has got tobe made under the provisions of the Act, and accordingly made theorder which is the subject matter of challenge in this petition.4. While assailing the order under challenge, the learnedcounsel for the petitioner made the following two points.(a) Firstly, the order of detention came to be passed on23.4.2009 and the post detention representation was sent to theCentral Government on 30.4.2009 and the telegraphic message ofrejection was served upon the detenu on 17.6.2009 and the samewould clearly indicate that it was only an intimation but it did notcontain the order of rejection at all and the detenu was unable tounderstand whether the representation made by him was consideredproperly and whether the order was passed on merits or not. Thus,the order would suffer from infirmity. (b) Secondly, the occurrence has taken place on 15.4.2009 whenthe detenu was alleged to have been in possession of 50 bags of PDSrice and he was arrested on the same day. The recovery mahazar was https://hcservices.ecourts.gov.in/hcservices/ prepared on 12.15 hours as found in Page No.38 of the booklet butthereafter he taken to the police station and a case came to beregistered in Crime No.218 of 2009 at 2.00 p.m. But in the recoverymahazar as found in page No.38, it appears that it contains thecrime number as 'Cr.No.218/09' and it could not have happened atall. If to be so, the detaining authority should have called forclarification but failed to do so. Hence, on that ground the orderwould suffer. Thus, the order is infirm and it 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 23.4.2009 on the strength of the recommendation made by thesponsoring authority that he had indulged in two adverse cases andone ground case in Crime No.218/2009 registered by the CivilSupplies,Madras where he was found in possession of 50 bags of PDSrice. It is not in controversy that post detentionrepresentation was made by the detenu on 30.4.2009 but the same wasrejected on 17.6.2009 and as could be seen from the availablematerials and as rightly pointed out by the learned counsel for thepetitioner, a telegraphic communication was served upon the detenuand on that, an order of rejection came to be made and it would bequite clear from a perusal of the document that it was only anintimation and not an order of rejection. So long as the order ofrejection was not served upon the detenu, it could not be understoodwhether the representation was considered properly and whether thespeaking order on merits of the matter was passed. Mere service ofintimation of rejection of the representation would not be sufficeas law would require speaking order of rejection. Under suchcircumstances, the order would suffer on that ground also and thesame has got to be set aside.7. Equally, the order suffers on the next ground also.Admittedly, a case came to be registered by the Madras CivilSupplies Central Investigation Department in Crime No.218/2009 on15.4.2009. From the materials available, it is seen that the detenuwas found in possession of 50 bags of PDS rice at about 12.15 hoursand it was seized under a cover of mahazar as found in page 38. Thedetenu was arrested and was taken to the police station and a casecame to be registered in Crime No.218 of 2009 at 2.00 p.m. But ona perusal of the seizure mahazar which was actually prepared at12.15 hours it contained Crime number. If really the seizure mahazaras found in page 38 was prepared at 12.15 hours, at the time andplace 50 bags of PDS rice was seized from the detenu, then it couldnot contain the crime number. But as could be seen from the seizuremahazar at Page 38 it contain the crime number. Under such https://hcservices.ecourts.gov.in/hcservices/ circumstances, the detaining authority should have called forclarification and duty was cast upon him to do so but he failed toso. Thus, he has not scrutinised the documents proper. Therefore,the Court is of the opinion that on the above said grounds, withouthesitation, the order of detention has got to be set aside.8. 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.VsiSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Government, Food and Consumer Protection Department, Chennai – 9.2. The Commissioner of Police, Chennai City Sub Urban Area.3. The Secretary to Government, Food and Consumer Protection Department, Government of India, New Delhi.4. The Superintendent, Central Prison, Puzhal, Chennai.5. The Joint Secretary to Government Public (Law and order), Fort St George, Chennai 9. 6. The Public Prosecutor, High Court, Madras.HCP.No.723 of 2009PUR(CO)SR/22.7.2009