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.608 of 2009 K.Shantha .. Petitioner/Wife of the detenu vs 1.The Secretary to Government Food Cooperative and Consumer Protection Department Secretariat, Chennai 600 009 2.District Collector and District Magistrate Kancheepuram District Kancheepuram 3.The Secretary to Government Food & Consumer Protection Department 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 3.4.2009 in M6.D.O.No.25/2009 against the petitioner's husband Nagendran @ Karunakaran @ Kunju, son of Munusamy, aged about 40 years who is confined at Central Prison, Puzal, Chennai, 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.Paarthiban For Respondents : Mr.N.R.Elango Additional Public Prosecutor for RR1 & 2 Mr.S.Haja Mohideen Gisthi ACGSC 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 detention made by the second respondent dated 3.4.2009 in M6.D.O.No.25/2009, whereby the petitioner's husband Karunakaran @ Kunju 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 Court heard the learned Counsel for the petitioner. The affidavit in support of the petition along with the grounds of attack are perused apart all the materials available including the order under challenge. 3.Admittedly, the sponsoring authority pursuant to the registration of one adverse case registered by CID Civil Supplies, Thiruvannamalai, in Crime No.862/2008 under Sec.6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of Essential Commodities Act, 1955, for an incident that had taken place on 19.12.2008, and also one ground case in Crime No.99/2009 registered by Civil Supplies CID, Thiruvannamalai Unit, under Sec.6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of Essential Commodities Act, 1955 r/w Sections 403, 353, 506(ii) and 307 of IPC on 13.3.2009 when the detenu was found in possession of 40 bags of PDS rice, made a recommendation before the detaining authority. On perusal and scrutiny of all the materials available, the sponsoring authority recorded its satisfaction that the activities of the detenu were prejudicial to the maintenance of distribution of essential commodities to the public and hence in order to prevent him from indulging in such further activities an order of detention has got to be passed, and accordingly made the order which is challenged before this Court. 4.Advancing arguments on behalf of the petitioner, the learned Counsel inter alia raised the following points: (a) Two post-detention representations were made on 14.4.2009 one to the Central Government third respondentherein and the other to the State Government. The representation was actually received by the Central Government, and thereafter it was also rejected on 21.5.2009, but only an intimation was sent by the Central Government third respondent, and it was also received by the detenu. Thus what was served was only an intimation and not an order of rejection. So long as a speaking order of rejection with all the reasons is not made or served upon the party, he could not understand whether his representation was considered properly. The learned Counsel took the Court to paragraph 4 of the Counter filed by the third respondent wherein it is candidly admitted that rejection intimation was given by a telegraphic message. According to the Counsel, it would not satisfy the law, and on that ground it has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/ (b) As far as the representation made to the State Government is concerned, till this time, it has neither been considered nor any intimation is made. (c) The authority has observed in paragraph 4 of the order that there arose a necessity for detaining him under the provisions of the Essential Commodities Act since he is habitual black marketeer by committing this offence repeatedly. It is pertinent to point out that there was only one adverse case for an incident on 19.12.2008, and there was another ground case. Hence the comment made by the detaining authority that he was repeatedly doing the offence was not correct. Therefore, the impression that was in the mind of the authority that he was repeatedly committing the offence has impelled him to pass such an order of detention, and on the above grounds, the order suffers and hence it has got to be set aside. 5.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6.As seen above and also on scrutiny of the materials available, it would be quite clear that the order under challenge came to be passed on 3.4.2009, on the strength of the recommendation made by the sponsoring authority that one adverse case and one ground case as referred to above were registered against the detenu. On scrutiny of the materials available, this Court is able to see force in the first ground though not in the ground Nos.2 and 3. As far as first ground is concerned, it is admitted by the third respondent that there was a post-detention representation made on 14.4.2009, and the same was also received, and it was also rejected on 21.5.2009. As rightly pointed out by the learned Counsel for the petitioner, what was actually communicated to the party was not the order of rejection, but only an intimation of rejection which would be quite evident from paragraph 4 of the counter filed by the third respondent which reads thus: "This fact of rejection of representation was communicated to the detainee through Superintendent, Central Prison, Puzhal, Chennai, Tamil Nadu vide telegram dated 21.5.2009." Thus it would be quite evident that after the rejection was made, what was communicated to the party was only a telegraphic message as to the rejection. It would even indicate that the order of rejection was not at all served upon the party. Service of order of rejection alone would satisfy law for two reasons. Firstly, the party could understand whether his representation was considered properly or not. Secondly, whether a speaking order was passed or not, and it must be made known. Mere communication of the rejection intimation would not satisfy law. In such circumstances, on that ground the order would suffer. 7.Apart from the above, as far as the representation made to the State Government dated 14.4.2009, is concerned, only a postal receipt https://hcservices.ecourts.gov.in/hcservices/ is placed before the Court, but not the acknowledgement. So long as there is no evidence to indicate that actually the representation was served upon the State Government, there is no question of expecting any order or reply therefrom, and hence that ground has got to be rejected. 8.As far as the third ground is concerned, it is true that the authority has mentioned in its order that there was already an adverse case against him for an incident on 19.12.2008, and apart from this, there was a ground case in Crime No.99/2009 for an incident on 13.3.2009 as found in the order. But, the registration of both the cases by the Civil Supplies CID is not disputed. Needless to say the offence of black marketing is actually anti- social, and it would also touch the poverty-stricken. It is also PDS rice and it would affect the downtrodden. In such circumstances, the comment of the authority made that he was repeatedly committing the offence, in the considered opinion of this Court, was perfectly correct. Hence ground Nos.2 and 3 are rejected. However, on the first ground, the order suffers. 9.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/- Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Secretary to Government Food Cooperative and Consumer Protection Department Secretariat, Chennai 600 009 2.District Collector and District Magistrate Kancheepuram District Kancheepuram 3.The Secretary to Government Food & Consumer Protection Department Government of India New Delhi 110 001. https://hcservices.ecourts.gov.in/hcservices/ 4.The Public Prosecutor High Court, Madras. +1 cc to M/s.S.Haja Mohideen Gisthi, ACGSC, SR.No.30019 +1 cc to Mr.C.Prakasam, Advocate, SR.No.30170 HCP No.608 of 2009 VSV {CO} TP/17.7.2009. https://hcservices.ecourts.gov.in/hcservices/