IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 9-7-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN HCP No.609 of 2009 G.Chandrasekar .. Petitioner vs 1.The Secretary to Government Cooperation, Food and Consumer Protection Department Secretariat, Chennai 9. 2.The Commissioner of Police Tiruchirappalli City. 3.The Secretary to Government Food and Consumer Protection Department Ministry of Consumer Affairs, Food and Public Distribution System, Government of India New Delhi 110 001. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying to issue a writ of habeas corpus calling for the records in connection with the order of detention passed by the second respondent dated 28.2.2009 in C.P.O/T.C/I.S/B.M/D.O.No.01/2009 against the petitioner's brother Selvam, son of Maruthai @ Ganesan, aged about 43 years who is confined at Central Prison, Tiruchirappalli and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty. For Petitioner : Mr.V.Parthiban For Respondents : Mr.N.R.Elango Additional Public Prosecutor for RR1 & 2 Mr.M.Devendran SPCCG 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 the second respondent made in C.P.O/T.C/I.S/B.M/D.O.No.01/2009 dated 28.2.2009, whereby one Selvam, the brother of the petitioner herein, was ordered to be detained under the provisions of the 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 is perused along with the grounds of attack and also the materials available. The Court heard the learned Counsel for he petitioner. 3.Admittedly, the order under challenge came to be made by the second respondent pursuant to the recommendation made by the sponsoring authority that the detenu is involved in three adverse cases namely (1) Tiruchirappalli CS CID Cr.No.721/2007 under Clause 6 (4) of TNSC (RDCS) Order 1982 r/w 7(1)a(ii) of EC Act, 1955; (2) Tiruchirappalli CS CID Cr.No.647/2008 under Clause 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)a(ii) of EC Act, 1955 and (3) Tiruchirappalli CS CID Cr.No.788/2008 under Clause 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)a(ii) of EC Act, 1955 and one ground case registered by Tiruchirappalli CS CID in Crime No.91/2009 under Clause 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)a(ii) of EC Act, 1955 for an incident that had taken place on 21.2.2009, when he was found in possession of 40 bags of PDS rice. The detaining authority after scrutiny of the entire materials has recorded its satisfaction that the activities of the detenu were prejudicial to the maintenance of distribution of essential commodities to public and apart from this, in order to prevent him from indulging in such activities in future, an order of detention has become necessary, and hence made the order, which is the subject matter of challenge before this Court. 4.Attacking the order, the learned Counsel for the petitioner raised the following points: (a) The order came to be passed on 28.2.2009. The incident is shown to have taken place on 21.2.2009, when he was found in possession of 40 bags of PDS rice, and Crime No.91/2009 came to be registered by Tiruchirappalli Civil Supplies CID. The authority has pointed out in paragraph 5 of its order that "The bail application in Cr.M.P.No.509 of 2009 moved by him before the Judicial Magistrate No.VI, Tiruchirappalli, for this case is pending. He is very likely to be coming out on bail in this case." While a bail application was pending before a Court of criminal law, the authority has stated that he was very likely to be coming out on bail. It was only mere apprehension without any basis at all, and apart from that, what was the order to be made by the Judicial Magistrate in that petition seeking for bail could not be presumed. Hence the order suffers since it was without any consistent material. (b) In the instant case, the bail application in Cr.M.P.No.509 of 2009 was made before the Judicial Magistrate No.VI, Tiruchirappalli, and notice was served on the A.P.P. who in turn https://hcservices.ecourts.gov.in/hcservices/ served a notice on the concerned police calling for its remarks as found in page 70 of the booklet. The Tamil version of this communication calling for the remarks by the APP from the concerned police, was not served upon him, but a copy in English version was actually served, and hence it would be quite clear that it was one of the relied on documents. If to be so, if the authority feels a copy of the English version must be served, then a need arose for serving the Tamil version also. Only then the party could understand the contents of the English version. But, he was deterred from doing so. On that ground also, it would suffer. Hence it has got to be set aside. 5.Contrary to the above contentions, the learned Additional Public Prosecutor would submit that in the instant case, it is an admitted fact that a bail application was pending; that what is required is only the subjective satisfaction of the detaining authority; that since bail application was pending that time, the impression of the authority was that he was likely to be coming out on bail and hence it has stated so; and that nothing could be found defective on that ground. 6.Added further the learned Additional Public Prosecutor that when a representation was made by the detenu for the Tamil version of page 70 of the booklet namely the communication addressed by the APP to the concerned police, two copies were also sent along with the reply dated 30.4.2009, as found in the materials; that under the circumstances, that cannot be a ground to set aside the order, and hence the petition has got to be dismissed. 7.The Court paid its anxious consideration on the submissions made. 8.The Court after looking into the materials available and hearing the submissions, has to necessarily agree with the petitioner's case. It is not in controversy that the order under challenge came to be passed on 28.2.2009. It is also an admitted fact that a bail application in Cr.M.P.No.509/2009 was also pending before the Judicial Magistrate No.VI, Tiruchirappalli, on the day when the impugned order came to be passed. After pointing out the pendency of the bail application, the authority has stated in its order in paragraph 5 as follows: "The bail application in Cr.M.P.No.509 of 2009 moved by him before the Judicial Magistrate No.VI, Tiruchirappalli, for this case is pending. He is very likely to be coming out on bail in this case." From the above, it is clear that actually the authority has come to the conclusion that an order of bail would be passed in his favour. It would be quite clear that when the bail application was pending and an order was to be made in future, the detaining authority cannot come to the conclusion that such an order would be passed in favour of the detenu. Thus, it would be abundantly clear that it was only an expression of the impression that was passing in the mind of the authority and that too without any material whatsoever. Now, the https://hcservices.ecourts.gov.in/hcservices/ contentions put forth by the learned Additional Public Prosecutor cannot be countenanced. 9.As far as the second ground is concerned, the Court is able to see sufficient force in the same that the translated copies of all the relevant documents were supplied to the detenu; but, in respect of one of the relied on documents namely the communication addressed by the APP to the concerned police calling for remarks on the bail application made by the party, English version of the same was actually served. The grievance of the detenu was that the Tamil version was not served upon him. Learned Additional Public Prosecutor brought to the notice of the Court that when the reply was sent, two copies of the Tamil version were sent along with the same. It is true that two copies of the same were actually sent along with the reply on the representation made by the detenu on 13.4.2009. But this would not satisfy the legal mandate. Sec.8 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act reads as follows: "8.Grounds of order of detention to be disclosed to person affected by the order:- (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government." Thus, it would be quite clear that the documents must be served within a period of five days from the date of the order. But in the instant case, the order came to be passed on 28.2.2009. It has actually been sent only on 30.4.2009. Thus it would be out of time, and it is not in accordance with the mandatory provision as provided under Sec.8 of the Act. Both the grounds are available to the party for getting the order set aside. 10.Accordingly, this habeas corpus petition is allowed setting aside the order of the second respondent, and the detenu is directed to be set at liberty forth unless his presence is required in connection with any other case. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar nsv To: 1.The Secretary to Government of Tamilnadu Cooperation, Food and Consumer Protection Department Secretariat, Chennai 9. https://hcservices.ecourts.gov.in/hcservices/ 2.The Commissioner of Police Tiruchirappalli City. 3.The Secretary to Government Food and Consumer Protection Department Ministry of Consumer Affairs, Food and Public Distribution System Government of India, New Delhi 110 001. 4.The Public Prosecutor High Court, Madras. 5 The Superintendent Central Prison, Trichiarapalli +1CC to Mr.M.Devendran Advocate SR.No.29732 +1CC to Mr.C.Prakasam Advocate SR.30171 HCP No.609 of 2009 CO-BV SRA-20/07/2009 https://hcservices.ecourts.gov.in/hcservices/