M.Periyammal.. v. The Secretary to Government Cooperation, Food and Consumer Protection Department Secretariat, Chennai 600 009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14.09.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHHCP No.997 of 2009M.Periyammal.. Petitioner vs1. The Secretary to Government Cooperation, Food and Consumer Protection Department Secretariat, Chennai 600 009.

The District Collector and District Magistrate of Villupuram District, Villupuram.

The Secretary to Government Food and Consumer Protection Department, Government of India, New Delhi... Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus calling for the entire records relating to the impugned order of detention passed by the 2nd respondent in No.C2/20685/2009 dated 24.06.2009 and setaside the same and consequently direct the respondents to produce thedetenu Manickam son of Periyasamy, aged 43 years husband of the petitioner, now confined at Central Prison, Cuddalore before this Court and set him at liberty forthwith. For Petitioner: Mr.S.SaravanakumarFor Respondents: Mr.Babu Muthu Meeran Additional Public Prosecutor for R1 & R2. Mr.G.Gurulingam,S.C.G.S.C. for R3.

O R D E R(Order of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to an order of the second respondent made inNo.C2/20685/2009 dated 24.06.2009, whereby the husband of the petitioner namely Manickam was ordered to be detained under the https://hcservices.ecourts.gov.in/hcservices/ provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 branding him as a blackmarketeer.2. The affidavit in support of the petition along with all the materials including the order under challenge are perused. The Courtheard the learned counsel for the petitioner.3. Concededly, the order under challenge came to be passed on24.6.2009 pursuant to the registration of two adverse cases namely(i) Cuddalore CSCID, Cr.No.101/2007 u/s 6(4) of TNSC (RDCS) order1982 r/w Sec.7(1)(a)(ii) of E.C. Act, 1955 for alleged transportation of 164 bags of raw rice and 139 bags of boiled rice each weighed about 50 kgs. (ii) Salem CSCID, Cr.No.78/2009 u/s 6(4) of TNSC(RDCS) order 1982 r/w Sec. 7(1)(a)(ii) of E.C. Act,1955 for alleged transportation of PDS rice in two lorries, 200 bags with 50 kgseach in one lorry and 180 bags with 50 kgs each in another lorry and also a ground case in Crime No.168/2009 Civil Supplies C.I.D.,Cuddalore u/s 6(4) of TNSC (RDCS) order 1982 r/w 7(i)(a)(ii) of ECAct 1955 and 353, 506(ii) & 307 IPC that 46 bags of PDS rice each containing 50 kgs of rice was seized from the detenu on interception. The rice bags were placed before the analyst for quality report and the same was also confirmed that it was PDS rice. All the materials pursuant thereto were placed before the Board. On scrutiny of the materials available, the detaining authority was satisfied that the activities of the detenu were prejudicial to the public distribution system and hence, in order to prevent him from indulging in such activities, an order of detention has got to be made under the provisions of the Act, and accordingly made the order which is the subject matter of challenge in this petition.

Advancing the arguments on behalf of the petitioner, the learned counsel would submit, in the instant case, the case of the respondent was that on 15.6.2009, the detenu was found in possession of 46 bags of rice each containing 50 kgs of PDS rice and the case came to be registered in Crime No.168/2009 and the same wassent for analysis. The analyst report is found in page 90 of the booklet. A perusal of the same would indicate that 42 bags of rice were actually handed over to the analyst but according to the department 46 bags each containing 50 kgs were actually seized. Further, it is found to be contrary in the grounds of detention which reads as if only one bag of rice was sent to the Quality Manager, TNCCS, Villupuram for analysis on 16.6.2009. Added further learned counsel, in the instant case, as per the materials placed, the rice bags were recovered on 15.6.2009 but as could be seen in the analyst certificate, it was recovered and the sample was taken only on16.6.2009 and it was also received by the authority on 17.6.2009 andit is found to be contrary in the grounds of detention. Added further learned counsel, in the instant case, bail application was actually filed in Crl.M.P.No.5536/2009 before the Sessions Division, Villupuram and the same was dismissed on 24.6.2009. On the contrary, it is found in the order that the bail application was actually dismissed on 22.6.2009. It is pertinent to point out that even the order of detention was made on 24.6.2009 but it is recorded as if bail application was dismissed on 22.6.2009. All would go to show that these things escaped the vision of the detaining authority who https://hcservices.ecourts.gov.in/hcservices/ should have called for clarification, but not done so. Hence it would be suffice to set aside the order of detention.

The Court heard the learned counsel for the State on the above contentions.

It is not in controversy that pursuant to the registration of two adverse cases and one ground case in Crime No.168/2009 that thedetenu was found in possession of 46 bags of PDS rice which contain50 kgs each on 15.6.2009, the detention order came to be passed. Itis also not in controversy that the detenu filed bail application as referred to above before the Court of Session Villupuram and the same was dismissed on 24.6.2009. On the contrary, it is referred in the detention order that the dismissal order in the bail application was passed on 22.6.2009. Thus, the recording of the date of dismissal as22.6.2009 could been made as found from the materials placed by the sponsoring authority. Hence, a clarification should have been called by the detaining authority, but failed to do so. The other circumstances noticed by the Court which would disturb the detention order is that as per the State, the detenu was found in possession ofPDS rice on 15.6.2009 and the samples were also taken on the very day but when the certificate was issued by the analyst, it is referred toas if the samples were taken only on 16.6.2009 which found to bediscrepant. Further, the case of the department was that the detenuwas found in possession of 46 bags of PDS rice each containing 50 kgsbut it is found in the detention order as "One bag sample taken from the above said rice bags was sent to the Quality Manager, TNCSCGodown, Villupuram for analysis on 16-06-2009". The certificate issued by the Department would clearly indicate that 42 bags of rice were actually received but not one bag as found in the detention order. Apart from that, what was actually recovered, as per the Stateon 15.6.2009 was 46 bags of rice and not 42 bags of rice. For all these discrepancies, no explanation was tendered by the State. Theorder should have emanated by non-application of mind and on nonscrutiny of the materials proper, which in the considered opinion of the Court has caused much prejudice to the interest of the detenu. Hence, the order suffers from infirmity and it is liable to be setaside.