Nagaraj v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17-7-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANHCP No.865 of 2009 Nagaraj.. Petitionervs1.The State of Tamilnadu Rep. By its Secretary to Government Cooperation, Food and ConsumerProtection Department Fort St. George Chennai2.District Magistrate and District Collector Coimbatore3.The Union of India Rep. By its Secretary to Government Food and Consumer Affairs PublicDistribution Government of India New Delhi.. RespondentsHabeas corpus filed under Article 226 of the Constitution of India praying to issue a writ of habeas corpus calling for theentire records leading to the detention of the petitioner's brother-in-law namely Thiru Shanmugam alias Shanmugasundaram, aged 24 years, son of Ayyappa Chettiar, detained under Act 7 of 1980 vide detentionorder dated 27.5.2009 on the file of the 2nd respondent herein madein Cr.M.P.No.13/BM/2009/E4, quash the same and consequently directthe respondents herein to produce the body and person of the saiddetenu before this Court and set him at liberty from Central Prison, Coimbatore. For Petitioner: Ms.R.Subadra DeviFor Respondent: Mr.N.R.Elango Additional Public Prosecutor for RR1 & 2 Mr.M.Devendran ACGSC 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 detention made by the secondrespondent dated 27.5.2009, whereby the brother-in-law of thepetitioner by name Shanmugam @ Shanmugasundaram was ordered to bedetained under the provisions of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980 terminghim as a black marketeer.

The affidavit in support of the petition along with thegrounds of attack are perused. Also the materials and in particularthe order under challenge are perused.

Admittedly pursuant to the recommendations made by thesponsoring authority that two adverse cases namely (1) Pollachi UnitCivil Supplies Criminal Investigation Department Crime No.337/2007under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 and (2) Pollachi Unit CS CID CrimeNo.756/2008 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955, and also a ground case in Pollachi Unit CS CID Crime No.113/2009 under Sec.6(4) of TNSC (RDCS)Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955alleging that the detenu was found in possession of 30 bags of PDSrice each containing 50 Kgs on 18.4.2009 were registered against thedetenu and on scrutiny of the materials placed by the sponsoringauthority, the detaining authority recorded its subjectivesatisfaction that the activities of the detenu were prejudicial tothe maintenance of supplies of commodities essential to thecommunity, and hence in order to prevent him from indulging in anysuch further activities, it became necessary to make such an order, and accordingly the order under challenge was made.

Advancing arguments on behalf of the petitioner, the learnedCounsel would submit that as could be seen from the order andmaterials, on 18.4.2009, the detenu was found in possession of 30bags of PDS rice each containing 50 kgs. which is a consistent caseof the department; but, as could be seen from the qualitycertificate as found in page 83 of the booklet, the total quantityof the rice which was actually placed before the Analyst was only1350 kgs; that as far as the rest namely 150 kgs. is concerned, noexplanation was tendered at any point of time; that apart from this, while the department claimed as per the records and also the FIRthat 1500 kgs. of PDS rice was actually seized under a cover ofmahazar in the presence of two witnesses on 18.4.2009, what wasplaced before the Analyst was only 1350 kgs. and thus, there was adiscrepancy in the material particulars; and that inter alia thedetaining authority should have called for a clarification, butfailed to do so which would affect the order. https://hcservices.ecourts.gov.in/hcservices/

Added further the learned Counsel that the said PDS rice wasactually recovered as per the records on 18.4.2009, and a case cameto be registered; that the Analyst's report is dated 21.4.2009, ascould be seen from page 83 of the booklet; but the statement of the Analyst was recorded by the Inspector of Police, Civil Supply CID,under Sec.161 Cr.P.C., on 18.4.2009 itself and signed by him ascould be seen from page 85,; that when it was actually placed beforethe analyst only on 20.4.2009, how the statement could be given orrecorded on 18.4.2009 is a matter of surprise, and under thecircumstances, a clarification should have been called for, but notdone so.

Added further the learned Counsel as the last point thatafter the order of detention was passed on 27.5.2009, a post-detention representation was made to the third respondent/CentralGovernment on 7.6.2009; but no reply has yet been received; and thatnon-consideration of the representation would suffice to set asidethe order. 7. The Court heard the learned Counsel for the respondents andpaid its anxious consideration on the submissions made.

As seen above, pursuant to the recommendation made by thesponsoring authority that three adverse cases and one ground case asreferred to above were registered against the detenu, the detainingauthority recording subjective satisfaction that the activities ofthe detenu were prejudicial to the public distribution system andalso in order to prevent the same, an order of detention should bepassed, made the order. The consistent case of the department ascould be seen from the FIR, seizure mahazar and the materials wasthat he was found in possession of PDS rice on 18.4.2009, and thequantity was also shown as 30 bags of rice each containing 50 kgs. If to be so, when it was placed before the Analyst for the purposeof analysis, it was found to be 1350 kgs. as found in page 83 of thebooklet. How this discrepancy arose was actually to be explained bythe department. Equally, after the seizure mahazar was made on18.4.2009 as stated above, it was placed before the Analyst on20.4.2009, and the Analyst has also given a report dated 21.4.2009;but, the statement of the Analyst was found to be recorded by the Inspector of Police and signed by him on 18.4.2009, which could nothave happened at all. Under the circumstances, a duty was cast uponthe detaining authority to call for a clarification. It would alsomean that the documents have not been properly scrutinized either, or if properly scrutinized, the authority should have called for aclarification, but not done either way, and that would affect theorder.