IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 4-1-2011 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN H.C.P.No.1853 of 2010 Thilagaveni .. Petitioner vs 1.State of Tamil Nadu represented by its Secretary, Department of Co-operation Food and Consumer Protection Secretariat, Chennai 9. 2.The District Collector and District Magistrate Tirupur District Tirupur 3.Additional Secretary to Government of India Ministry of Consumer Affairs, Food and Public Distribution Department of Consumer Affairs Room No.270, Krishi Bhavan New Delhi 1. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus calling for the records in connection with the detention order dated 6.9.2010 and made in Cr.M.P.No.02/2010(CS) on the file of the second respondent herein and setting aside the same and directing the respondents herein to produce the detenu Raj @ Govindaraj, aged 44 years, son of Palani Gounder, who is now confined in Central Prison, Coimbatore, before this Court and set him at liberty. For Petitioner : Mr.S.Ananth For Respondents : Mr.V.R.Balasubramaniam Additional Public Prosecutor for RR1 & 2 Mr.V.Kathirvelu for R3 ORDER (Order of the Court was made by M.CHOCKALINGAM, J.) This petition for issuance of a writ of habeas corpus challenges an order of the second respondent dated 6.9.2010, made in https://hcservices.ecourts.gov.in/hcservices/ Cr.M.P.No.02/2010(CS) whereby the husband of the petitioner by name Raj alias Govindaraj 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 Court looked into all the materials available and in particular, the order under challenge and heard the learned Counsel for the petitioner. 3.It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the petitioner's husband Raj alias Govindaraj was involved in two adverse cases namely (1) Erode District, Chennimalai Police Station Cr.No.244/2010 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 and (2) Pollachi Civil Supplies Criminal Investigation Department Crime No.398/2010 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 and also he was found in possession of 60 bags of PDS rice each containing 50 kgs., on 22.8.2010, and consequent upon the seizure made, a case in Crime No.434/2010 was registered by Civil Supplies Criminal Investigation Department, Pollachi, under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955, the detaining authority on scrutiny of the entire materials recorded its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of supplies of commodities essential to the community, and hence made the order under challenge branding him as a black marketeer. 4.The learned Counsel while advancing arguments on behalf of the petitioner raised the following two grounds which, according to him, would suffice to set aside the order. (i) The ground case was actually registered on 22.8.2010, pursuant to the seizure of 60 bags of PDS rice from the detenu by the Civil Supplies Criminal Investigation Department, Pollachi, in Crime No.434/2010, and he has also moved for bail before the Judicial Magistrate No.IV, Coimbatore, in Crl.M.P.No.2541/2010, and the same was dismissed on 30.8.2010. While the matter stood thus, the order came to be passed on 6.9.2010, stating that there was a real possibility of the detenu coming out on bail which was without material, much less cogent material. (ii) While the case came to be registered in Crime No.434/2010 on 22.8.2010, as could be seen from the grounds of detention, in page No.52 of the booklet which contained the remand report, the date of the registration of the FIR is shown as 19.3.2010. Under the circumstances, naturally a clarification should have been called for since it was a document relied upon by the authority, but it was not done so. Thus it would be quite clear that the detaining authority has recorded its subjective satisfaction even without asking for a clarification as to the same. 5.The Court heard the learned Additional Public Prosecutor for the State and also the learned Counsel for the third respondent on all the above contentions and paid its anxious consideration on the submissions made. https://hcservices.ecourts.gov.in/hcservices/ 6.As could be seen above, the detaining authority after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of supplies of commodities essential to the community, has made the order under challenge. As regards the first ground, the ground case was registered on 22.8.2010, in Crime No.434/2010. It is an admitted position that he moved a bail application before the Judicial Magistrate No.IV, Coimbatore, in the ground case, and the same was dismissed on 30.8.2010. While so, the impugned order came to be passed on 6.9.2010. But, the authority has stated in the grounds of detention that there was a real possibility of the detenu coming out on bail which is without material, much less cogent material which the law would require. Under the circumstances, the order has become defective. 7.Insofar as the second ground urged by the petitioner's Counsel, while the ground case was registered on 22.8.2010, the remand report as found in page 52 of the booklet, would indicate the date of registration of the case as 19.3.2010. It remains to be stated that it was also a relied upon document. In such circumstances, a clarification should have been called for by the detaining authority, but failed to do so. Thus, it would be indicative of the fact that the authority has arrived at the subjective satisfaction even without calling for a clarification in that regard. This Court is of the considered opinion that on both the grounds, the order has got to be set aside. 8.Accordingly, this petition is allowed setting aside the order of detention passed by 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 nsv To: 1.The Secretary, Department of Co-operation Food and Consumer Protection Secretariat, Chennai 9. 2.The District Collector and District Magistrate Tirupur District Tirupur https://hcservices.ecourts.gov.in/hcservices/ 3.The Additional Secretary to Government of India Ministry of Consumer Affairs, Food and Public Distribution Department of Consumer Affairs Room No.270, Krishi Bhavan New Delhi 1. 4.The Public Prosecutor High Court, Madras. 5. The Superintendent, Central Prison, Coimbatore. 6. The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai -9. 1 cc To Mr.V.Kadhirvelu, Advocate, SR.243. HCP No.1853 of 2010 TRM(CO) RVL 28.01.2011 https://hcservices.ecourts.gov.in/hcservices/