IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:16.06.2008 CORAM: THE HON'BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON'BLE MR.JUSTICE S.PALANIVELU HCP.NO.170 OF 2008 MohammedAsik ... Petitioner/brother of the detenu Vs. 1.The Secretary to Government, Food, Cooperation and Consumer Protection Deartmnt, Secretariat, Chennai 600 009 2. The District Collector and District Magistrate, Theni District, Theni. 3. The Addl.Secretary to Government of India, Department of Consumer Affairs, 270, Krish Bhavan, New Delhi 110 001. .. Respondents Petition under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus calling for the records in connection with the detention order No.01/2008/CS dated 24.01.2008 against the petitioner's brother Thameemul Ansari Son of Abdul Rahuman, aged about 22 years who is confined at Central Prison, Madurai 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.M.Babu Muthu Meeran Additional Public Prosecutor 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 the order of detention of the detenue terming him as "Black Marketeer" made by the second respondent in No.01/2008/CS dated 24.01.2008. 2. Affidavit filed in support of the petition is perused. The order under challenge is also perused. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondents-State. 3. Consequent upon the recommendation made by the Sponsoring Authority, two cases came to be registered against the detenu, viz.Firstly pursuant to the incident in which CS CID intercepted the detenu on 11.10.2007 at 14.30 hours, the detenu was found in possession of 30 bags of PDS Boiled rice each containing 50 Kgs and hence a case came to be registered in Crime No.581 of 2007 under Section 6(4) of TNSC (RDCS) order 1982 read with 7(i)(a)(ii) of Essential Commodities Act 1955 and secondly on the strength of ground case, pursuant to the registration of a case in Crime No.20 of 2008 under Section 6(4) of TNSC (RDCS) order 1982 read with 7(i)(a)(ii) of Essential Commodities Act 1955 alleging that on 11.1.2008 at the time of interception, the detenu along with other accused found in possession of 60 bags of PDS Rice each containing 50 Kgs. The detaining authority has recorded that he has arrived at a subjective satisfaction on the materials available to record a finding that the detenu was actually transporting the essential commodities in a manner prejudicial to maintenance and supplies of Commodities essential to the community, thus violated the provisions of Essential Commodities Act 1955 and in order to prevent him from doing such activities in future, necessity arose to pass such an order of detention which is the subject matter of challenge before this Court. 4. Advancing the arguments on behalf of the petitioner, in a sincere attempt of assailing the order, learned counsel raised the following points. The detaining authority has not applied its mind before passing the order under challenge for the reason that he has not sought for any clarification as required under the facts and circumstances of the case. The first case was registered against the detenu on 11.10.2007 and the second case was registered on 11.1.2008. The first one was adverse case and the second one was ground case. On production of the detenu before the Judicial Magistrate, Uthamalapalayam in the ground case, bail application was moved and he was bailed out on 21.1.2008. A perusal of the order passed in the bail application would clearly indicate that no objection was raised https://hcservices.ecourts.gov.in/hcservices/ by the prosecution when it was stated by the accused/petitioner that there was no previous case against him. The Sponsoring authority filed its affidavit along with the materials before the detaining authority on 23.1.2008 where one adverse case and one ground case were pointed out, which were referred to above. It is pertinent to point out that the bail order passed by the Judicial Magistrate in Cr.M.P.No.491 of 2008 was also placed before the detaining authority and thus had the detaining authority looked the materials properly and applied its mind, he would have called for clarification as to the difference. But, he has not done so. Added further, learned counsel that in Crime No.20/08 referred to above, registered on 11.1.2008, the detenu was produced before the learned Judicial Magistrate, Uthamapalayam at about 8.30, as could be seen from the order of remand made by Judicial Magistrate concerned as found in page 65 of the booklet and in particular, as per the seizure mahazar and also the statement of witnesses therein the interception and recovery of PDS rice was made between 8 and 9. If to be so, he could not have been produced at 8.30 before the learned Magistrate concerned hence there also it requires clarification from the authority how it happened. But the detaining authority had not looked into account the same also. Thus, it would speak about non- application of mind on the part of the detaining authority and hence the order under challenge has got to be quashed. 5. The Court heard the learned Additional Public prosecutor on the above contentions and had a thorough perusal of materials available which in the opinion would reach the irresistable conclusion that the order has got to be quashed. 6. Concededly the order under challenge terming the detenu as Black Marketeer came to be passed on the strength of the affidavit made by the sponsoring authority on 23.1.2008. It is also not in controversy that two cases i.e. one adverse case and one ground case came to be registered against the detenu, one on 11.10.2007 and another on 11.1.2008. As rightly pointed out by the learned counsel for the petitioner, the detenu sought for bail before the Judicial Magistrate,Uthamapalayam in the ground case. On production for remand in Crl.M.P.No.491 of 2008, the Magistrate on appraisal of the circumstances passed an order granting bail . While doing so, learned Magistrate concerned has pointed out that according to the petitioner, he was not involved in any other case and the prosecution has also not raised any objection in this regard. But, when the sponsoring authority made an affidavit on 23.01.2008 i.e. within few days after the grant of bail, the sponsoring authority has pointed out that two cases were registered one adverse case and one ground case and thus when the materials are placed, no doubt the order granting bail in Crl.M.P.No. 491 of 2008 should have been placed before the detaining authority and if the detaining authority verified the documents properly, he would have called for explanation. But neither he has verified the materials placed before https://hcservices.ecourts.gov.in/hcservices/ him nor he has called for clarification from the authority concerned. Secondly, as could be seen from the materials available that the interception of the detenu was made along with two accused on 11.1.2008 and PDS rice was seized under the cover of mahazar between 8 and 9 a.m. and if the order of the Magistrate concerned making a remand of the detenu would indicate that he was produced before the Court at 8.30 and had it been true that PDS rice was seized under the cover of Mahazar between 8 and 9 , questioning before the Magistrate at 8.30 would not arise. Under such circumstances, it requires clarification which the detaining authority compelled to do so. All would go to show that the detaining authority has not properly applied its mind before passing the order which in the opinion of this Court would cause prejudice to the interest of the detenu. Hence, without hesitation, the habeas corpus petition has got to be quashed and accordingly it is quashed. 7. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in Detention Order No.01/2008/CS dated 24.01.2008, the detenu, namely, Thameemul Ansari, who is now confined at Central Prison, Madurai 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 VJY To 1.The Secretary to Government, Food, Cooperation and Consumer Protection Deartmnt, Secretariat, Chennai 600 009 2. The District Collector and District Magistrate, Theni District, Theni. https://hcservices.ecourts.gov.in/hcservices/ 3. The Addl.Secretary to Government of India, Department of Consumer Affairs, 270, Krish Bhavan, New Delhi 110 001. 4. The Superintentent, central prison, Madurai. 5. The Joint sSecretary to Government, public (Law & Order) Department, Fort St.George, chennai. 6. The Pubulic Prosecutor, high Court, madras-104 1 CC To Mr.C.Prakasam, Advocate, SR NO.29774. HCP.NO.170 OF 2008 ssn(co) pmk/3.7.08 https://hcservices.ecourts.gov.in/hcservices/