IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 17.04.2009 Coram The Honourable Mr.Justice ELIPE DHARMA RAO and The Honourable Mr. Justice R.SUBBIAH H.C.P. No.1990 of 2008 V.Kannammal ... Petitioner ..Vs.. 1. The State of Tamil Nadu, rep.by its Secretary, Food, Co-operation and Consumer Protection Department, Secretariat, Chennai-600 009. 2. The Commissioner of Police, Chennai City Sub-Urban Area, St.Thomas Mount, Chennai-600 016. 3. Government of India, rep.by its Secretary, Food and Consumer Protection Dept., New Delhi-110 001. ... Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, call for the records relating to the detention order by Order No.01/2008 dated 12.11.2008, passed by the 2nd respondent and quash the same and direct the respondents to produce the detenu Viswanathan, son of Rathinam, aged 43 years, now confined at Central Prison, Puzhal, Chennai-66 and set him at liberty. For Petitioner : Mr.P.Krishnan For Respondents : Mr.N.R. Elango, A.P.P., for R1 & R2 Mr.M.Gopikrishnan, ACGSC., for R3 https://hcservices.ecourts.gov.in/hcservices/ R.SUBBIAH, J., Petitioner is the wife of the detenu viz., Viswanathan, against whom the detention order has been passed on 12.11.2008 under sub-section (1) of section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a 'Blackmarketeer' and she is challenging the detention order by this habeas corpus petition. 2. For clamping the order of detention, the 2nd respondent has relied upon three adverse cases and the ground case. The facts discussed by the detaining authority in the grounds of detention with regard to the ground case are as follows: (a) On 02.11.2008 at 11.30 Hours, while the Inspector of Police, Civil Supplies, C.I.D., along with police party, conducting raids, to watch as to whether the items of essential commodities such as rice and kerosene intended to be supplied to poor people under Public Distribution System are smuggled and sold at black market, they received a reliable information that the rice meant for Public Distribution System was stored for smuggling at T.P.Elumalai Street, S.V.Nagar, Ambattur. (b) On receipt of the said information, the Inspector of Police, Civil Supplies C.I.D., along with his police party, rushed to the said spot and found that the detenu was standing near a thatched shed in that street and noticing the police party, the detenu tried to escape from the spot. When Head Constable Thiru Ramesh rushed to apprehend him, he took an iron rod, measuring a length of 2-1/4 feet from the roadside and rushed to beat the said Ramesh over his head; but, however, the Head Constable Ramesh bent himself and escaped from the said attack. The Inspector of Police and his police party surrounded the detenu and apprehended him at the spot and retrieved the iron rod and examined him. Subsequently, the detenu was taken to the place where he illegally stored the rice, which was actually meant for supply to the poor people under Public Distribution System and examined the rice bags. On examination, the Inspector of Police found 50 Nos.of bags and each bag was found to contain about 50 kgs.of ration rice. Since the detenu had no proper authentication for storing the rice meant for Public Distribution System, the Inspector of Police, Civil Supplies C.I.D., recorded his confession statement and seized the 50 Nos.of bags and the iron rod used for assaulting the police personnel under a cover of mahazar. Thereafter, the sponsoring authority, namely, the Inspector of Police, Civil Supplies C.I.D., registered a case in Crime No.1919 of 2008 for the offences punishable under Sections 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of Essential https://hcservices.ecourts.gov.in/hcservices/ Commodities Act, 1955 and Sections 403, 332 and 307 IPC. After examining the witnesses, the detenu was produced before the learned Judicial Magistrate, Ambattur, who remanded him to judicial custody and he was lodged at Central Prison, Puzhal, Chennai as remand prisoner till 17.11.2008. Thereafter, the Inspector of Police sent the seized ration rice bags to the Assistant Manager, Tamil Nadu Civil Supplies Corporation Limited, Anna Nagar to keep them under safe custody under acknowledgment and also requested to issue quality certificate after analysis. Subsequently, the Inspector of Police received the quality certificate from the Assistant Manager confirming that it was the ration rice, meant for distribution to the poor people under Public Distribution System. Since the act of the detenu had not only affected the distribution of rice to the poor public under Public Distribution System, but also had caused loss to the Government and since he was habitually purchasing the ration rice at meagre cost and also transporting to other States for pecuniary gain, the sponsoring authority, finding that the detenu has acted in a manner prejudicial to the maintenance of supplies of commodities essential to the community and as such, he is a "Black Marketeer" as contemplated under Section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, sent a proposal to the Detaining Authority for passing an order of detention against him. The Detaining Authority, on consideration of the materials placed before him, passed the order of detention against the detenu. Aggrieved by the same, the present Habeas Corpus Petition is filed. 3. In his endeavour to assail the order of detention, amongst other grounds, learned counsel appearing for the petitioner has stressed the following grounds: (i) in page 5 of the grounds of detention, it has been stated that the sponsoring authority had seized 50 bags of rice and the iron rod used for assaulting the police personnel under a cover of mahazar. But, in the mahazar, which is available at page 70 of booklet, no reference was made with regard to the seizure of iron rod; (ii) in the first information report pertaining to the ground case, available at page 66 of the booklet, it has been mentioned as if the offence was committed on 02.11.2008, whereas in column 2 of the arrest report (found at page Nos. 71 and 72 both in Tamil and English versions), the date of offence was mentioned as 02.10.2008 at 11.30 Hours. The discrepancy in mentioning the date of offence in between the first information report and the arrest report was not properly looked into by the Detaining authority and he has not called for any explanation for the same from the sponsoring authority . Therefore there is https://hcservices.ecourts.gov.in/hcservices/ non-application of mind on the part of the detaining authority in passing the detention order. Hence on this ground, the detention order is liable to be set aside; (iii) in the quality certificates available at page Nos.80 and 81 of the booklet, the samples were numbered as SB 169/350 and SB 170/351 respectively; but the sample numbers were wrongly mentioned in the statement of Assistant Manager as 69 and 70, instead of 169 and 170. The detaining authority, without looking into these discrepancies and without calling for any explanation from the sponsoring authority, has passed the order of detention. Hence, the act of the detaining authority would show that without arriving at proper subjective satisfaction, the detaining authority has mechanically passed the order of detention on receipt of the materials from the sponsoring authority; that the detaining authority ought to have taken care and caution while perusing the materials before reaching the subjective satisfaction. In the instant case, the act of the detaining authority would show that he has given a go-bye to all the cardinal principles of law, which are to be adopted while passing a pre-dention order. Hence, the detention order is vitiated for want of application of mind by the detaining authority. (iv) Learned counsel for the petitioner next contended that in para 4 of the grounds of detention, the detaining authority stated that in the ground case the detenu was remanded to judicial custody and was lodged at Central Prison, Puzhal as remand prisoner till 17.11.2008 and he has not moved any bail application so far. The detaining authority, after observing that the detenu has not moved any bail application till the date of passing of detention order, has stated in the grounds of detention that there is a real possibility of coming out on bail by filing another bail application before the lower court. The relevant lines from para 4 are extracted hereunder: "4. I am aware that Thiru.Viswanathan was produced before the Judicial Magistrate Court, Ambattur, Chennai, in Civil Supplies, CID, Chennai Unit Crime No.1919/2008 and he was remanded to judicial custody and was lodged at Central Prison, Puzhal, Chennai, as remand prisoner till 17.11.2008 and he has not moved any bail application so far. I am also aware that there is real possibility of his coming out on bail by filing another bail application before the Lower Court or Court of Sessions or Hon'ble High court since in similar cases bails are granted by the above Courts after a lapse of time. If he comes out on bail he will indulge in such https://hcservices.ecourts.gov.in/hcservices/ further activities in future as well which will be prejudicial to the maintenance of supplies of commodities essential to the community...". Thus, by referring to the above lines, the learned counsel for the petitioner contended that when no bail application was moved by the detenu till the date of passing the detention order, the question of filing another bail application does not arise and it would show that proper subjective satisfaction was not arrived at by the detaining authority and the detaining authority has passed the order of detention mechanically without taking due caution that he is dealing with the matter of pre- detention. Therefore, there is complete non-application of mind on the part of the detaining authority, which would deprive the right guaranteed under Article 22(5() of the Constitution of India and hence the impugned order is liable to be set aside. 4. By way of reply, learned Additional Public Prosecutor submits that such aspects, as adverted to by the learned counsel for the petitioner, are not sufficient to come to the conclusion that the impugned order of detention is passed without application of mind by the detaining authority. These discrepancies can be considered only as inadvertent mistakes, which would normally occur while dealing with voluminous documents. Under such circumstances, the habeas corpus petition is liable to be dismissed. 5. Heard the learned counsel for the petitioner and the respondents and perused the entire materials placed before us. 6. With regard to the first contention, on a close perusal of the records, we find that the seizure of iron rod is totally immaterial to arrive at a proper subjective satisfaction. No doubt, in the mahazar available at page 70, no reference was made with regard to seizure of iron rod. But, a perusal of the first information report and other documents would show that the iron rod was seized from the detenu at the time of occurrence. Though the seizure of iron rod was not referred to in the mahazar available at page 70, in the first information report (page No.67) it has been clearly mentioned that the iron rod was seized by the sponsoring authority from the place of occurrence. Therefore, we do not find any error in mentioning about the seizure of the iron rod in the grounds of detention by the detaining authority and we reject the submission made by the learned counsel for the petitioner that there is non-application of mind on the part of the detaining authority in this regard. https://hcservices.ecourts.gov.in/hcservices/ 7. So far as the the other submission made by the learned counsel for the petitioner with regard to the discrepancy in mentioning the date of occurrence is concerned, it is clear that the date of occurrence was 02.11.2008 because except in column No.2 of the arrest report, in all other columns it is rightly mentioned as 2.11.2008. 8. Similarly, with regard to the other contention made by the learned counsel for the petitioner relating to the statement made by Assistant Manager in respect of sample numbers found contrary to the sample number mentioned in the quality certificate, in our considered opinion, mentioning the sample Nos.as 69 and 70 instead of 169 and 170 as found in the quality certificate, could be considered only as an inadvertent typographical mistake. Hence, in our opinion, when there is enough material to show that the occurrence had occurred on 02.11.2008 and the sample Nos.are 169 and 170, the discrepancies pointed out by the learned counsel for the petitioner found in certain documents could not help the detenu to persuade this Court to come to a conclusion that there is non-application of mind on the part of the detaining authority. Hence, we are rejecting the submission made by the learned counsel for the petitioner in this regard. 9. In respect of the submission made by the learned counsel for the petitioner with regard to imminent possibility of the detenu coming out on bail, according to the learned Additional Public Prosecutor, the statement of the detaining authority that there is real possibility of the detenu coming out on bail by further filing bail application cannot be held to be non application of mind on the part of the detaining authority, in the light of the judgment of the Hon'ble Supreme Court in Ibrahim Nazeer Vs. State of T.N.and another reported in (2006) 3 SCC (Cri) 17, wherein, while answering such similar contention raised therein, it has been held by Their Lordship as under:- "5. In support of the appeal, learned counsel for the appellant that the only plea raised was that the High Court was not justified in holding that the detaining authority's view about imminent possibility of the detenu coming out on bail was correct. It was also submitted that since the detenu had not filed any bail application after withdrawal of the first petition, the detaining authority could not have inferred that there was possibility of his being released on bail".... Xx xx xx xx xx https://hcservices.ecourts.gov.in/hcservices/ 7. It is to be noted that whether prayer for bail would be accepted depends on the circumstances of each case and no hard and fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be an ipse dixit of the detaining authority. On the basis of materials before it, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with. On the facts of the case, the detaining authority has indicated as to why he was of the opinion that there is likelihood of the detenu being released on bail. It has been clearly stated that in similar cases, orders granting bail are passed by various courts. The appellant has not disputed the correctness of this statement".... 10. Applying the above proposition, it could be seen that in the case on hand, the detaining authority had satisfied himself about the real possibility of the detenu coming out on bail by filing further bail application before the same court or higher courts, since in similar cases bails are granted by the same court or higher courts after a lapse of time, based on the materials placed before the Courts. The detaining authority further proceeded to state that he was fully satisfied that the detenu is a Black Marketeer and that there is a compelling necessity to detain him in order to prevent him from indulging in such further activities in future, which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14 of 1982. 11. On going through the materials placed on record and also the grounds of detention order, we are of the view that the detaining authority has rightly arrived at the subjective satisfaction to hold that the detenu is a Black Marketeer and also the reasoning as to the real possibility of his coming out on bail by filing bail application before the same court or higher courts. Therefore the contention raised by the learned counsel for petitioner in this regard cannot be accepted. https://hcservices.ecourts.gov.in/hcservices/ From the said discussions, we are of the view that there is no valid ground to set aside the order of detention dated 12.11.2008. Hence, the habeas corpus petition fails and, accordingly, the same is dismissed. Gl Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Secretary to Government, State of Tamil Nadu, Food, Co-operation and Consumer Protection Department, Secretariat, Chennai-600 009. 2. The Commissioner of Police, Chennai City Sub-Urban Area, St.Thomas Mount, Chennai-600 016. 3. The Secretary, Government of India, Food and Consumer Protection Dept., New Delhi-110 001. 4. The Superintendent, Central Prison, Puzhal, Chennai.66. 5. The Public Prosecutor, High Court, Madras. + 1 cc to Mr. M. Gopikrishnan, Additional Central Government Standing Counsel SR No.14913 MBS(CO) SR/22.4.2009 Order in H.C.P.No.1990 of 2008 https://hcservices.ecourts.gov.in/hcservices/