IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:08.07.2009 CORAM: THE HON'BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON'BLE MR.JUSTICE C.S.KARNAN HCP.NO.418 OF 2009 Thangavel ...Petitioner Vs. 1.The State of Tamil Nadu, rep. by its Secretary to Government,, Cooperatiion,Food and Consumer Protection Dept., Fort St.George, Chennai. 2.The District Magistrate and District Collector,Salem District. 3.The Union of India rep. By its Secretary to Government, Food and Consumer Protection Department, Ministry of Consumer Affairs Public Distribution, Government of India, NewDelhi. ..Respondents Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus calling for the entire records leading to the detention of the petitioner's Son namely Thiru Vadivel, aged 49 years, Son of Thangavel, detained under Act 7 of 1980 vide detention order dated 19.3.2009 on the file of the 2nd respondent herein made in C.M.P.No.7/PBMMSEC Act/2009 (J3) quash the same and consequently direct the respondents herein to produce the body and person of the said detenu before this Court and thereafter set him at liberty from Central Prison, Salem. For petitioner : Ms.R.Subadradevi For Respondents 1 & 2: Mr.N.R.Elango Additional Public Prosecutor For Respondent No.3 : Mr.K.Ravindranath SCCG --- https://hcservices.ecourts.gov.in/hcservices/ 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 in C.M.P.No.7/PBMMSEC Act/2009 (J3) dated 19.03.2009 whereby the son of the petitioner namely Vadivelu was ordered to be detained under the provisions of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 branding him as a black marketeer. 2. The affidavit in support of the petition along with all the materials including the order under challenge are perused. The Court heard the learned Counsel for the petitioner. 3. Concededly, the order under challenge came to be passed on the recommendations made by the sponsoring authority that the case came to be registered against the detenu in Crime No.99/2009 under section 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of Essential Commodities Act 1955 in Civil Supplies Salem, when he was found in possession of 200 bags of Public Distribution System rice. On scrutiny of the materials available, the detaining authority recorded its subjective satisfaction that the activities of the detenu were prejudicial to the maintainability of the Public Distribution System and in order to prevent him from indulging in such activities in future, it became necessary to make the order of detention, made the order accordingly, which is the subject matter of challenge. 4. Advancing the arguments on behalf of the petitioner the learned counsel made the following points for consideration. (a) Firstly, according to the department, the detenu was found in possession of 20 bags of PDS rice on 12.3.2009 The order came to be passed on 9.3.2009. No bail application was filed before any Court of law. While the matter stood thus, the detaining authority have observed in its order, if the detenu comes out on bail he likely indulge in such activities. Thus, the said observation when no bail application was filed or pending, and even without observing whether there was any possibility of coming out on bail, was actually without any basis or reason whatsoever. This would indicate the non- application mind on the part of the authorities. (b) Secondly, a representation was actually made to the Central Government on 26.3.2009 and it was received on 31.3.2009. An intimation was given that a representation was rejected on 12.5.2009. The learned counsel would submit that there was delay and only an intimation of rejected was served upon the detenu and not an order. So long as the order of rejection was not served upon the detenu, the detenu was unable to understand whether the representation given by him was considered properly or not. https://hcservices.ecourts.gov.in/hcservices/ (c) Thirdly, the order came to be passed on 19.3.2009. The Board came to be constituted on 21.4.2009 and an intimation as to the constitution of the Board was served upon the detenu at Salem on 17.4.2009, 18.4.2009 and 19.4.2009 being Saturday and Sunday- holidays, he was brought to Madras on 20.4.2009 i.e., on the next day. Thus, no sufficient opportunity was given to the detenu to effectively defend or putforth his case before the disciplinary authority. In support of the above said contention, the learned counsel relied on the judgment of the Division Bench made in HCP No.1411/2007 dated 17.3.2008. Under such circumstances, on these three grounds, the order of detention has got to be set aside. 5. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 6. In so far as the first contention is concerned, the detenu was found in possession of Public Distribution System rice on 12.3.2009 and the order of detention came to be passed on 19.3.2009, in the meantime, no application for bail made by the detenu pursuant to his arrest. In the instant case, a reading of the order under challenge would clearly indicate that the authority has not even stated that there was real possibility or imminent possibility of the detenu coming out on bail. On the contrary, it was observed, if he comes out on bail, there is likelihood to indulge in such activities. At this juncture, the Court has to point out two points. Firstly, on the day when the order of detention came to be passed, no bail application was filed nor was it pending before any Court of criminal law, secondly, the authority has not even stated whether there was real or imminent possibility but it has observed if he comes out on bail, there is likelihood to indulge in such activities. Thus, it is quite clear that there was non-application of mind. 7. In so far as the second ground is concerned, a representation was made on 26.3.2009 to the Central Government the same was received on 31.3.2009 and also an intimation was given on 12.5.2009 were all admitted position. In the instant case, though the representation was received on 31.3.2009, actually an intimation was given on 12.5.2009 that the same was rejected and delay was also noticed but what was served upon the detenu was intimation of rejection and not the order of rejection. So long as the order of rejection was not served upon the detenu, the detenu cannot understand whether the representation made by him was properly considered or not. Therefore, the service of intimation of rejection of representation would not be suffice and that ground would be available to the petitioner. 8. As far as the third ground is concerned, the learned counsel for the State in his reply would submit that actually a message was https://hcservices.ecourts.gov.in/hcservices/ given to the detenu on 13.4.2009 itself sufficiently informing him as to the Constitution of the Board and that he has to appear before the Board on 21.4.2009. Therefore, the contention of the learned counsel for the petitioner that sufficient opportunity was not given to the detenu to the defend the case, cannot be countenanced. The Court has to necessarily accept the contention putforth by the learned counsel for the State and the intimation orally given on 13.4.2009 would be suffice. Under such circumstances, the contention putforth by the learned counsel for the petitioner on that ground is rejected. 9. So far as the third ground is concerned, the Court has to reject the contention putforth by the learned counsel for the petitioner. On the first and second ground, the Court has to necessarily agree with the learned counsel for the petitioner. Under these circumstances, this Court is of the considered opinion that the order suffers from infirmity and it is liable to be set aside. 10. Accordingly, this habeas corpus petition is allowed setting aside the order of the second respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Vsi To 1.The Secretary to Government,, Cooperatiion,Food and Consumer Protection Dept., Fort St.George, Chennai. 2. The District Magistrate and District Collector, Salem District. 3. The Secretary to Government, Food and Consumer Protection Department, Ministry of Consumer Affairs Public Distribution, Government of India, New Delhi. 4. The Public Prosecutor, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ 5. The Superintendent, Central Prison, Salem. 6. The Joint Secretary to Government, Public [Law and Order] Department, Fort St.George, Chennai - 9 HCP.No.418 of 2009 KA(CO) SRA(21/7/2009) https://hcservices.ecourts.gov.in/hcservices/