P.Lakshmi v. The State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:04.08.2009CORAM:THE HON’BLE MR.JUSTICE M.CHOCKALINGAMANDTHE HON’BLE MR.JUSTICE C.S.KARNANHCP.NO.962 OF 2009P.Lakshmi...Petitioner Vs.1.The State rep. by itsSecretary to Government,Cooperation Food and Consumer Protection Department,Secretariat,Chennai 600 009.2.District Magistrate and District Collector,Salem District,Salem.3.Additional Secretary to the Government of India, Ministry of Consumer Affairs and Public Distribution Government of India, Room No.270, Krishi Bhawan, New Delhi 110 001. ...RespondentsPetition filed under Article 226 of the Constitution ofIndia for the issuance of a writ of Habeas Corpus calling for therecords relating to the Detention order CMP.No.12/PBMMSEC Act/2009(J3) dated 17.4.2009 passed by the second respondent herein underthe Prevention and Black Marketing and Maintenance of Suppilies ofEssentials Commodities Act, 1980 and quash the same and direct therespondents to produce the detenu namely A.Periyasamy, Son of AlaguPadayachi aged about 32 years, now confined in Central Prison,Salem before this Court and set him at liberty. https://hcservices.ecourts.gov.in/hcservices/ For petitioner: Mr.D.Balachandran For Respondents 1 & 2: Mr.N.R.Elango Additional Public Prosecutor For Respondent No.3: Mr.C.GurulingamSCGSC ---O R D E R (Order of the Court was made by M.CHOCKALINGAM,J) Challenge is made to an order of the second respondentin M.P.No.12/PBMMSEC Act/2009(J3) dated 17.4.2009 whereby thehusband of the petitioner namely A.Periyasamy was ordered to bedetained under the provisions of the Prevention of Black Marketingand Maintenance of Supplies of Essential Commodities Act, 1980branding him as 'Black Marketeer'. 2. The affidavit in support of the petition along with allthe materials including the order under challenge are perused. TheCourt heard the learned Counsel for the petitioner. 3 . Admittedly, pursuant to the recommendations made tothe Sponsoring Authority that four adverse cases viz.,(1)SalemCivil Supplies Criminal Investigation Department Supplies,Crime.No.582/2008 under Section 6(4) of TNSC (RDCS) Order 1982 andr/w 7(1)(a)(ii) Essential Commodities Act 1955 (2) Salem CivilSupplies Criminal Investigation Department, Crime.No.30/2009 underSection 6(4) of TNSC (RDCS) Order 1982 and r/w 7(1)(a)(ii)Essential Commodities Act 1955 (3)Salem Civil Supplies CriminalInvestigation Department Supplies, Crime.No.80/2009 under Section6(4) of TNSC (RDCS) Order 1982 and r/w 7(1)(a)(ii) EssentialCommodities Act 1955 (4) Salem Civil Supplies CriminalInvestigation Department, Crime.No.89/2009 under Section 6(4) ofTNSC (RDCS) Order 1982 and r/w 7(1)(a)(ii) Essential CommoditiesAct 1955 one ground case in Crime No.158 of 2009 that on10.4.2009 registered by the Civil Supplies CID, Salem alleging thatthe detenu was found in possession of 50 bags of PDS rice eachcontaining 50 Kgs on 10.4.2009 and on scrutiny of materials, thedetaining authority after recording his satisfaction that thedetenue was indulged in activities which are prejudicial to thePublic Distribution System and in order to restrain him fromindulging in such activities in future, it became necessary to makean order of detention and accordingly made the order on 17.4.2009,which is challenged in this Habeas Corpus Petition. https://hcservices.ecourts.gov.in/hcservices/

4. Learned counsel in his sincere attempt of attackingthe order would submit as follows:(i) The first ground raised was that the detenu has movedfor bail in Crime No.158 of 2009, but the authority has stated inits order that in similar cases, bails were granted by concernedCourt or Higher Courts after lapse of time and hence there arosenecessity to make an order of detention. The authority has not evenstated whether there was l possibility either real or imminent tocome out on bail. Therefore, the order came to be passed though noteven a bail application was filed. Thus, such an observation wasmade without any material whatsoever. Thus the order was found tobe defective. (ii) The second ground raised by the learned counselfor the petitioner was that though four adverse cases wereregistered against the petitioner, insofar as 4th adverse case wasconcerned, no material was placed before the detaining authority asto the order of judicial remand made, but it is stated that in allthe four cases, he was remanded to judicial custody and thus it canbe stated that the statement made by the Sponsoring Authority waswithout any application of mind.(iii) Learned counsel would further add that the orderof detention came to be passed on 17.4.2009 and approved on29.4.2009 and subsequently a representation was made by the detenuon 12.5.2009 and the same was rejected on 5.6.2009. Learned counselwould submit that while the approval was made by the State and arepresentation was made subsequently, the detaining authority wasnot competent to dispose of the representation. But, in the instantcase, the detaining authority has rejected the representation on5.6.2009 without any competency. This has vitiated the order ofdetention. (iv) In the instant case, it is pointed out that thoughone of the co-accused was also stated to be detained as Blackmarketeer, to substantiate the said statement, there is no materialavailable on record.. Under such circumstances, it could be statedthat it was passed without any material whatsoever.(v) Learned counsel would further add that the factum ofarrest was not informed either to the petitioner or to any one ofthe relatives, as could be seen in Page 69 of the booklet. It isfound that the intimation was not given to the wife, but it isfound that as if a telegraphic message was given to the wife of thedetenu, but no material is placed before the authority and the wifeof the detenu has categorically stated that she was not intimatedabout the arrest of her husband, the detenu. Apart from that, it isstated that intimation was given to one Anand, a friend of the https://hcservices.ecourts.gov.in/hcservices/ detenu. For all the above reasons, the detention order has got tobe set aside. 5.The Court heard the learned Additional PublicProsecutor on all the above contentions and paid its anxiousconsideration on the submissions made. 6. It is not in controversy that the detenu A.Periyasamy,who was involved in four adverse cases and one ground case referredto above, was appeared to be detained by the detaining authorityafter recording satisfaction that the activities of the detenu isprejudicial to the maintenance of Public Distribution System. (i) Admittedly, a case was registered in Crime No.158 of2009 for an incident that took place on 10.4.2009. It is not incontroversy that the detenu has not moved any bail applicationbefore the Criminal Court of law, but it is found in the order inpara 5 as follows: "I am aware that Thiru A.Periyasamy, is inremand in Salem Unit Civil Supplies CriminalInvestigation Department Crime No.30/2009, 80/2009,89/2009 and 158/2009 and he has not moved any bailapplication, In similar cases bails are granted byconcerned Court or Higher Courts after lapse oftime." From the very reading of the above paragraph, it is quite clearthat at the time of passing of the order, it is well within hisknowledge that the detenu has not moved any bail application andeven then, the authority has not even stated that there waslikelihood of the detenu coming out on bail. The observation madeby the authority that after lapse of time, bails were granted bythe Courts was only an expression of apprehension of the detainingauthority, but it was passed without any material whatsoever andrather it was pre mature. Hence, it has got to be termed asdefective. (ii) As pointed out by the learned counsel for thepetitioner, though he was involved in four adverse cases, nomaterial was placed to the effect that there was any judicialremand in respect of 4th adverse case, but it is stated in the orderthat he was remanded in all the four cases. The statement was madewithout any material whatsoever. (iii) Added further, in the instant case, the order underchallenge came to be passed on 17.4.2009 and the detenu made arepresentation on 12.5.2009 and after the approval was made on https://hcservices.ecourts.gov.in/hcservices/

29.4.2009, the detaining authority has no power or competency toconsider the representation and he was duty bound to place thesame before the State Government. But, the detaining authority hasrejected the said representation on 5.6.2009 after the approval wasmade on 29.4.2009 at all. The detaining authority has neithercompetency nor empower to do the same. On that ground also, theorder of detention is defective.(iv) Equally, insofar as the statement made in the courseof the order, the order of detention came to be passed against theco-accused, no material is placed before the detaining authority, (v) Equally insofar as the intimation of arrest isconcerned, no acceptable material was placed and what is found inPage 69 of the booklet cannot be accepted. All would go to show that the order of detention is foundto be defective and it has got to be set aside and accordingly itis set aside.7. Accordingly, the Habeas Corpus Petition is allowed,setting aside the detention order passed by the second respondentin C.M.P.No.12/PNMMSEC Act/2009(J3) dated 17.4.2009, The detenu,namely, A.Periyasamy, who is now confined at Central Prison, Salemis directed to be set at liberty forthwith unless his presence isrequired in connection with any other case.VJYSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1.The Secretary to Government,Cooperation Food and Consumer Protection Department,Secretariat,Chennai 600 009.2.District Magistrate and District Collector,Salem District,Salem. https://hcservices.ecourts.gov.in/hcservices/

3.The Additional Secretary to the Government of India, Ministry of Consumer Affairs and Public Distribution Government of India, Room No.270, Krishi Bhawan, New Delhi 110 001.4.The Superintendent, Central Prison, Salem.5.The Public Prosecutor, High Court, Madras6.The Joint Secretary to the Government of Tamil Nadu,Public (Law and Order) Department,Fort St George, Chennai 9.+ 1 cc to Mr. D. Balachandran, Advocate SR No.35450HCP.NO.962 OF 2009LA(CO)SR/31.8.2009