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.413 OF 2009 A.Ganesan ...Petitioner Vs. 1.The District Collector & District Magistrate, Kancheepuram District, Kancheepuram. 2.The Secretary to Government, Food, Co-operation & Consumer Protection Dept., Secretariat, Chennai-9. 3.The Additional Secrtary to Government, Food and Consumer Protection Department, Govt. of India, New Delhi 110 001. 4.The Inspector of Police, Civil Supplies CID Thruvannamalai, Kancheepuram Unit ..Respondents Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus directing the respondents to produce the detenue Veeraperumal, Son of Ganesan aged 23 who is detained in Central Prison,Puzhal,Chennai in pursuance of detention order dated 4.2.2009 in No.M6.No.01/2009 before this Court to call for the records, set aside the order and set the detenue at liberty forthwith. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.R.C.Paul Kanagaraj For Respondents 1 ,2& 4: Mr.N.R.Elango Additional Public Prosecutor For Respondent No.3 : Mr.S.Haja Mohideen Gisthi ACGSC O R D E R (Order of the Court was made by M.CHOCKALINGAM,J) Challenge is made to an order the first respondent in M.O.D.No.01/2009 dated 4.2.2009 whereby the son of the petitioner namely Veeraperumal 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. Concededly the order under challenge came to be passed on 4.2.2009 pursuant to the registration of the two adverse cases namely (1) Thiruvannamalai Civil Supplies Criminal Investigation Department Supplies, Crime.No.701/2008 under Section 6(4) of TNSC (RDCS) Order No. 1982 and r/w 7(1)(a)(ii) Essential Commodities Act 1955 for transporting 30 bags of PDS rice each weighing about 50 kgs in a Tata Mini Van bearing Regn.No.TN-25-V-1197; (2) Thiruvannamalai Civil Supplies Criminal Investigation Department Supplies in Crime.No.712/2008 under Section 6(4) of TNSC (RDCS) Order No. 1982 and r/w 7(1)(a)(ii) Essential Commodities Act 1955 for alleged possession of 15 bags of PDS rice each weighing about 50 kgs and also a ground case in Civil Supplies CID, Thiruvannamalai in Crime No.18/2009 under Sec.6(4) of TNSC (RDCS) order 1982 and read with 7 (1)(a)(ii) of Essential Commodities Act 1955 r/w 403, 353, 506(ii) and 307 IPC stating that on 11.1.2009, when the Inspector of Police, Civil Supplies Criminal Investigation Department, Thiruvannamalai Unit, was engaged in raid in detecting hoarding and smuggling of essential commodities in Karanimandapam in Uthiramerur – Vandavasi Road, he found the detenu in possession of 40 bags of PDS rice each weighing 50 kg. and when the police attempted to arrest, the detenu tried to attack the Head Constable on his head with an iron rod but the Head Constable bend and escaped from the attack. The PDS rice was actually smuggled with the intention to make wrongful gain and the PDS rice was seized under a mahazar and he was also arrested, and a case came to be registered in the above crime number. All materials in respect of those cases were placed before the detaining authority along with the recommendation. On scrutiny of the https://hcservices.ecourts.gov.in/hcservices/ materials available, the detaining authority was satisfied that the activities of the detenu were prejudicial to the public distribution system and hence in order to prevent him from indulging in such activities, an order of detention has got to be made under the provisions of the Act, and accordingly made the order which is the subject matter of challenge in this petition. 4. Assailing the order under challenge, the learned counsel would submit that the order came to be passed on 4.2.2009 and following the same two representations were made, one to the second respondent and the other to the third respondent both on 18.2.2009 and both the representations have not been considered yet. Secondly, the consistent case of the department was that on 11.1.2009, the detenu was found in possession of 40 bags of raw rice and they were actually placed in the godown and thereafter the same was placed before the analyst. A perusal of analyst certificate would indicate that the rice placed before the Analyst is a raw rice. If to be so there was vital discrepancies on the material particulars. The detaining authority should have called for clarification but failed to do so. Even a persual of the certificate would indicate that there is a specific column stating " Certified that the sample has been analysed by me and it...... to the tolerance limits of uniform specifications" but on perusal of the quality certificate in Page 151 of the booklet, it is seen that the said column was not filled up and in the column meant for percentage it was written as 'PDS rice' and that would not satisfy the requirements and it cannot be taken as a quality certificate speaking about the nature of the sample that was taken. Added further learned counsel, in the instant case, a reading of the order of detention would indicate that on arrest, the father of the detenu was informed about the arrest by sending two telegraphic message but those copies of the telegraphic message were not served upon the detenu. The copies of the documents which were relied on should have been served on the detenu but it was not done so. Thus, the order is infirm and it 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. Concededly, the order of detention came to be passed by the first respondent terming the detenu, son of the petitioner, as a Black Marketeer on 4.2.2009 on the strength of two adverse cases and one ground case. It is contended by the learned counsel for the petitioner that two representations were made, one to the second respondent and the other to the third respondent on 18.2.2009 and a reply was given by the Counsel for the State that the representation sent to the second respondent was actually considered and rejected on 2.3.2009 and the same was also sent to the detenu on 3.3.2009 and they have got proof therefor. Hence, in so far as that part of the https://hcservices.ecourts.gov.in/hcservices/ contention as to the non-consideration of the representation sent by the detenu to the second respondent is concerned, it cannot be accepted. But in respect of the other part namely, the non- consideration of the representation made to the 3rd respondent is concerned, there is proof available for service. Even this time, the third respondent is not coming forward with any reply as to the consideration of the said representation. The non-reply of the 3rd respondent even after a period of 5 ½ months of the pendency of the application,in the opinion of the Court, would be suffice to lead to an inference that the representation which was actually sent by detenu on 18.2.2009 to the third respondent remains not considered. 7. So far as the other two contentions are concerned, the Court is able to see sufficient force. As could be seen from the available materials and also in the order of detention, the order came to be passed on the strength of two adverse case and in particular one ground case in Crime No.18/2009 stating that on 11.1.2009 the detenu was found in possession of 40 bags of boiled rice and the same was seized under a mahazar and after it was kept in the custody of the godown, it was sent to analyst seeking qualify certificate. The quality certificate is found in page No. 151 of the booklet. A perusal of the quality certificate would indicate that what was placed before the analyst was only raw rice and nowhere it shows that it was boiled rice. Needless to say, it is a vital discrepancy on material particular. Under such circumstances, duty is cast upon the detaining authority to call for clarification but they failed to do so. In the given case, the rice which was seized from the detenu was placed before the analyst for the purpose of giving quality certificate and there is a specific column in the quality certificate stating " Certified that the sample has been analysed by me and it......... to the tolerance limits of uniform specifications". On perusal of the quality certificate in Page 151 of the booklet, it could be seen that the said column is not filled up and it was left blank. This column should indicate whether the rice was PDS or not but it remains blank. Thus, it can be well stated that the certificate for which purpose it was issued did not serve the purpose. 8. Though it was claimed that immediately after the arrest, the reason for the arrest was made known to the father of the detenu by two telegraphic messages, the copies of those messages were not served upon the detenu. Needless to say, in a given case like this, where the detention order came to be passed, the relied on documents should be served upon the parties but in this case the copies of the documents which were relied on were not served upon the detenu. 9. All the grounds urged by the learned counsel for the petitioner would hold good. This Court can well comment that it was a denial of right which is available to him under the Constitution. https://hcservices.ecourts.gov.in/hcservices/ Under the circumstances, this Court is of the considered opinion that the order suffers from infirmity and it is liable to be set aside. 10. Accordingly, this habeas corpus petition is allowed setting aside the order of the first 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 District Collector & District Magistrate, Kancheepuram District, Kancheepuram. 2.The Secretary to Government, Food, Co-operation & Consumer Protection Dept., Secretariat, Chennai-9. 3.The Additional Secretary to Government, Food and Consumer Protection Department, Govt. of India, New Delhi 110 001. 4.The Inspector of Police, Civil Supplies CID Kancheepuram Unit Tharuvannamalai, 5.The Public Prosecutor, High Court, Madras. HCP.NO.413 OF 2009 ka(co) pmk.22.7.2009. https://hcservices.ecourts.gov.in/hcservices/