Judgment · High Court · 2006

In the High Court of Judicature at MadrasDated: 10.11.2006Coram: The Hon'ble Mr.Justice P.K.MISRAandThe Hon'ble Mr.Justice J.A.K.SampathkumarH.C.P.No.903 of 2006C.Prema. ... Petitioner Vs.

The State of Tamil Nadu, rep. by the Secretary, Food & Consumer Protection Department, Fort St. George, Chennai-600 009.

The Commissioner of Police, Greater Chennai, Egmore, Chennai-8.

The Secretary to Government, Food & Consumer Protection Department, Government of India, New Delhi.... RespondentsHabeas Corpus Petition filed under Article 226 of Constitution of India, issue Writ of Habeas Corpus, calling for the records on the file ofthe second respondent herein in Order No.3/2006 dated 12.8.2006 and setaside the Order of detention and direct the respondents to produce thedetenue Christopher, son of Jebamani, before this Hon'ble Court andrelease him forthwith from custody, who is now confined in Central Prison, Chennai. For Petitioner.. Mr.G.R.SwaminathanFor Respondent .. Mr.M.Babu Muthumeeran, Nos.1 and 2. Additional Public Prosecutor.

O R D E R(Order of the Court was made by P.K.MISRA, J)Heard the learned counsels appearing for the parties.2. The order of Preventive detention under Section 3(2)(b) read with Section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act No.7 of 1980)(hereinafter referred to as 'the Act'), has been challenged by the wife ofthe detenue. https://hcservices.ecourts.gov.in/hcservices/

3. The order of detention has been passed on 12.8.2006. In thegrounds of detention, the Detaining Authority has referred to the adversecases and also the ground case. It has been stated that, on 3.8.2006, the Inspector of Police, Civil Supplies CID, Chennai Unit, received reliableinformation that rice intended for supply to the poor public under the Public Distribution System, having been smuggled. The Inspectorproceeded to the place and kept watch thereon. When the police party wentnear the rice bags, the detenue came to the spot and informed the Inspector that the rice had been kept by him. When the police rushed toapprehend him, he tried to escape. The police chased him and thereafterthe detenue was apprehended after some resistance. 47 bags of rice wereseized and subsequently a crime was registered in Civil Supplies CIDChennai Unit Crime No.382/2006 under Sections 6(1) (4) of TNSC (RDCS)Order1982 r/w 7(1)(a)(ii) of E.C. Act 1955 and 341, 307, 427, 353, 506(2) and120(B) IPC and the police continued the investigation.

Thereafter, the Detaining Authority has passed an order of Preventive detention on theground that the detenue has been purchasing ration rice at meagre price, illegally transporting and selling the same at higher price with a viewto get more pecuniary gain and as such he is a Black-marketer ascontemplated under Section 3(1) of the Act. 4. The order of detention has been challenged on the followinggrounds:-(i) at the time of arrest, the arrest memo was furnished to therelative of the detenue. Such arrest memo is stated to have been preparedat the spot on 4.8.2006 at 9.30 A.M. However, the alleged crime wasregistered at 12.30 P.M. Mysteriously however, the crime number wasindicated in the arrest memo. According to the petitioner, this wouldindicate that there has been non-application of mind on the part of the Detaining Authority inasmuch as either the fact that arrest memo wasprepared and served at 9.30 A.M. is incorrect and it has been preparedafterwards.

(ii) The second ground raised by the petitioner is to the effect thatin the English version of the grounds of detention it is indicated as ifthe occurrence had taken place on 3.8.2006, whereas, in the Tamil versionof the said grounds of detention, the date of occurrence has been shown tobe 5.8.2006. However, it is not disputed that the alleged occurrence tookplace on 4.8.2006. This, according to the petitioner, prejudiced thedetenue in making a proper and effective representation. This alsoindicates absolute non-application of mind on the part of the DetainingAuthority. (iii) The other ground raised by the petitioner is to the effect thatin the English version of grounds of detention it has been indicated as ifthe offence had been committed under Section 6(1)(4) of TNSC (RDCS) Order1982 r/w 7(1)(a)(ii) of E.C. Act 1955 and 341, 307, 427, 353, 506(2) r/wSection 120(B) IPC., whereas, in the Tamil version it has been indicatedas if under Section 120(A) IPC.

A counter affidavit has been filed on behalf of the secondrespondent, wherein, it is indicated that even though in the Englishversion and Tamil Version incorrect date of occurrence were given due totypographical errors, the occurrence had actually taken place on 4.8.2006 https://hcservices.ecourts.gov.in/hcservices/ and the Detaining Authority had passed the order by applying his mind.

As regards giving of the crime number in the arrest memo, it isindicated that the Inspector of Police had contacted the police stationover cell phone and ascertained the crime number and had put the same inthe arrest memo and had served the same. It is submitted even assumingthat there has been any violation of the order passed by the Supreme Courtin D.K.Basu's case, that violation would not vitiate the subsequentorder of detention.

Regarding the discrepancy viz., mentioning the offence as 120(B)IPC in the English version and 120(A) IPC in the Tamil version, it isstated that it is a minor discrepancy and it would not vitiate the orderof detention.

In our considered opinion the discrepancy relating to the date ofoccurrence, in the English version and the Tamil version of the groundsof detention is a serious matter, which cannot be ignored as a mere minortypographical error. It is not disputed by the Detaining Authority thatthe alleged occurrence took place on 4.8.2006, whereas in the Englishversion it is indicated as if the occurrence took place on 3.8.2006 and inthe Tamil version it is indicated as if the occurrence took place on5.8.2006. Such a serious discrepancy in the English version and the Tamilversion relating to the alleged date of occurrence would cause prejudiceto any detenue as he would not be in a position to make any effectiverepresentation in relation to the alleged occurrence. The date ofoccurrence both in the English version and in the Tamil version of groundsof detention is incorrect and the actual date of occurrence is 4.8.2006.Apart from anything else, this discrepancy cause would obvious muchprejudice to the detenue in making effective representation and on thisground alone the order of detention is liable to be quashed. Moreover, this also indicates the non application of mind on the part of thedetaining authority.

Apart from the above, the fact that the crime number was given inthe arrest memo which was obviously prepared at the spot at the time ofarrest itself creates doubt regarding the arrest memo. Now the DetainingAuthority has come forward with an explanation that over cell phone thesaid crime number was ascertained. However, no other contemporaneousevidence is available to substantiate this subsequent explanation whichclearly appears to be an after-thought.

The learned counsel appearing for the State placed reliance uponan unreported decision of this Court rendered in H.C.P.No.11 of 2003 dated14.10.2003. In such matter, the Court had found that there was materialon record explaining such discrepancy, hence, the Court came to theconclusion that it could not be said that there was any non application ofmind. However, after such decision, there has been several otherdecisions of this Court, including one reported in P.Susila v. TheDistrict Magistrate and District Collector, Karur District, Karur andothers (2005 MLJ (Crl.) 49), wherein, it has been held that giving crimenumber in the arrest memo when the FIR is admittedly registered thereafteritself would indicate, in the absence of contemporaneous explanation, nonapplication of mind on the part of the detaining authority, having the https://hcservices.ecourts.gov.in/hcservices/ effect of vitiating the order of detention.

We have carefully gone through the affidavit filed by the Detaining Authority and the supporting affidavit filed by the State. Itis obvious, this supporting affidavit is only an after thought and itcannot be accepted. Therefore, the order of detention is liable to bequashed on this ground also.

The other ground relates to the discrepancy in mentioning theoffence as the one u/s 120(B) IPC in the English version and 120(A) IPC inthe Tamil version. In the present case, the ground on which the detenuewas detained was violation of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 and not on thealleged offence under IPC, which may not have any impact as such. Therefore, we are not accepting such contention of the petitioner.

For the aforesaid reasons, the Habeas Corpus Petition is allowed. The order of Preventive detention is hereby set aside and the detenue isordered to be released forthwith unless his presence is required for anyother case. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.gr. To1. The Secretary, Government of Tamil Nadu, Food & Consumer ProtectionDepartment, Fort St. George, Chennai-600 009.2. The Commissioner of Police, Greater Chennai, Egmore, Chennai-8.3. The Secretary to Government, Food & Consumer Protection Department, Government of India, New Delhi.4. The Superintendent, Central Prison, Chennai.5. The Joint Secretary to Government, Public [Law and Order], Fort St.George, Chennai 9.6. The Public Prosecutor, High Court, Madras.+ 2 CCs To Mr. G.R.Swaminathan, Advocate SR NO.54074, 54068H.C.P.NO.903 OF 2006ntk[co]Gp/7.12.