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.445 OF 2009 D.Krishnaveni ...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,Salem 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, New Delhi. ..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 husband namely Thiru R.Dhamodharan, aged 41 years, Son of Ramasamy, detained under Act 7 of 1980 vide detention order dated 19.3.2009 on the file of the 2nd respondent herein made in CMP.No.6/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. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Ms.R.Subadradevi For Respondents 1 & 2: Mr.N.R.Elango Additional Public Prosecutor For Respondent No.3 : Mr.K.Ravindranath SCCG --- 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.6/PBMMSEC Act/2009 (J3) dated 19.03.2009 whereby the husband of the petitioner namely R.Dhamodharan 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. It is not in controversy that the petitioner's husband R.Damodharan pursuant to the registration of the three adverse cases, (1) registered by the Salem Civil Supplies CID in Crime No.460/2005 under section 6(4) of TNSC (RDCS) Order 1982 read with 7 (1)(a)(ii) of Essential Commodities Act 1955 for the allegation that on 28.7.2005 the detenu and has accomplice took on lease of Tamilan Rice Mill and Oil, Flour Mill situated at Ayyampalayam village, Attur Taluk belonging to one Thiru. Palanivel and hoarded the 9 bags of ration, each weighing about 75 kgs , 17 bags of about each weighing about 50 kgs, 19 kgs of ration boiled rice each weighing but 75 kgs 227 bags of ration rice each weighing about 50 kgs in the above mill premises; (2) registered by Krishnagiri Civil Supplies CID in Crime No.79 of 2008 under section 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Comodities Act 1955 for the allegation that on the detenue attempted to smuggle 240 bags of Public Distribution System boiled rice each weighing 50 kgs to Karnataka State in Tarus Lorry and (3) registered by the Salem Civil Supplies CID in Crime No.68/2009 under section 6(4) of TNSC (RDCS) Ordr 1982 read with 7(1)(a)(ii) of Essential Commoditeis Act 1955 alleging that on 13.2.2009 the detenue and his accomplice hoarded 10 bags of ration rice each weighing 50 kgs near Kilangu Mill Manjini Road, Attur and also there was a ground case registered by Salem Civil Supplies Criminal Investigation Department in Crime No.98/2009 under section 6(4) of TNSC (RDCS) Order 1982 read with 7 (1)(a)(ii) of Essential Commoditeis Act 1955 for the allegation that https://hcservices.ecourts.gov.in/hcservices/ the police made a raid on 11.3.2009 at Attur-Chennai Main Road and on reliable information that ration rice was hoarded by the two persons near Attur Modern Rice Mill they proceeded at 10.00 hours and found two persons, on seeing the police, they tried to escape, the Police surrounded and caught hold one of them and when enquired he stated that he purchased the ration rice intended to the cardholders for the past few days from the Attur side by paying Rs.3/- per kilo and packed it 60 bags each weighing about 50 kgs and hoarded it near roadside bush near modern rice mill with intention of smuggling the same and black marketting in higher price in Karnataka State the Salem Food Cell caught hold of him. The Inspector of Police seized 60 bags of Public Distribution System ration rice each weighing about 50 kgs which was hoarded by the detenu under a cover of mahazar on 11.3.2009 at 11.45 hours. 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. Assailing the order, the learned counsel for the petitioner urged two grounds. (a) Firstly, the post detention representation was made to the Central Government on 31.3.2009 though it was received and acknowledged by the said Government it was neither been decided nor was intimated to the detenu yet. (b) Secondly, 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 two 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. As stated above, the order under challenge came to be passed on the recommendation made by the sponsoring authority and three adverse cases and a ground case were registered against the detenu. https://hcservices.ecourts.gov.in/hcservices/ It is not in controversy that the ground case came to be registered in Crime No.98/2009 on 11.3.2009 that the detenu was found to be in possession of 60 bags of Public Distribution System rice. It is well admitted in the course of the counter affidavit filed by the third respondent that a representation was made by the detenu on 31.3.2009 and the same was also received but nowhere it is found in the course of the entire counter that it was neither considered nor any orders passed but it could be seen from paragraph 4, despite three reminders addressed to the State Government, they could not get the record papers in that regard, therefore, order could not be passed. Thus, from the candid admission made in the course of the counter, there was a representation made on 31.3.2009 and the Central Government also received the same but it has not been disposed of yet. So far as the detenu is concerned, he has to show that post detention representation was sent and the same was also received by the authority and it is not his look out what was the actual reason which made the authorities not to dispose it of. Now, the reason adduced by the third respondent, despite reminder they could not get papers in time and hence, it was not disposed of cannot be suffice either in law or it could be seen as a reason in so far as the detenu is concerned for the delay caused. If there is unreasonable delay caused or the representation made is not dispose of properly as expected in law, prejudicial would be caused only to the detenu. Under such circumstance, the contention putforth by the counsel for the third respondent cannot be countenanced. 7. As far as the other contention made by the learned counsel for the petitioner is concerned, the learned counsel for the State in his reply would submit that actually a message was 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 in this regard cannot be countenanced. 8. So far as the second ground is concerned, the Court has to reject the contention putforth by the learned counsel for the petitioner. On the first 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 of detention suffers from infirmity and it is liable to be set aside. 9. Accordingly, this habeas corpus petition is allowed setting https://hcservices.ecourts.gov.in/hcservices/ 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,Salem 3.The Superintendent, Central Prison,Salem. 4.The Joint Secretary to Government, Public (Law and Order) Fort Saint George, Chennai-9. 5. The Secretary to Government, Food and Consumer Protection Department, Ministry of Consumer Affairs Public Distribution, Government of India, New Delhi. 6.The Public Prosecutor, High Court, Madras. +1cc to Mr.K.Ravindranath,SCCG SR 29699 +1cc to Mr.S.Haja Mohideen Gisthi,ACGSC Sr 29573 GV(CO) km/22.7. HCP.NO.445 OF 2009 https://hcservices.ecourts.gov.in/hcservices/