IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:09.07.2009 CORAM: THE HON'BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON'BLE MR.JUSTICE C.S.KARNAN HCP.NO.722 OF 2009 Linga Jyothi ...Petitioner Vs. 1.The Secretary to Government,, Cooperatiion,Food and Consumer Protection Dept., Chennai-9. 2.The District Magistrate and District Collector, Thiruvallur District, 3.The Secretary to Government, Ministry of Consumer Affairs, Food and Public Distribution, Department of Consumer Affairs, Government of India, Krish Bhavan, New Delhi. ..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 Vijayan @ vijayakumar, son of Arunachalam aged about 44 years, who is detained in Central Prison, Puzhal, Chennai in pursuance of detention order dated 24.4.2009 in Memo No.04/Black Marketing Act/2009 before this Court to call for the records, set aside the order and set the detenue at liberty forthwith. For petitioner : Mr.V.Parthiban For Respondents : Mr.N.R.Elango,A.P.P. for R1 & R2 Mr.M.Devendran, SPCCG for R3. 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 an order the second respondent made in Memo No.04/Black Marketing Act/2009 dated 24.4.2009 whereby the husband of the petitioner one Vijayan @ Vijayakumar 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. Admittedly, pursuant to the recommendation made by the sponsoring authority that two adverse cases (1) registered by the Civil Supplies CID, Thiruvallur in Crime No.433/2007 under section 6 (4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955 for the allegation that on 16.10.2008 the detenu was found in possession of 100 bags of Public Distribution System rice (2) registered by the Civil Supplies CID, Thiruvallur in Crime No.172/2009 under section 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a) (ii) of E.C. Act 1955 for the allegation that on 9.4.2009 the detenu was found in possession of 200 bags each containing 50 kgs of Public Distribution System rice and one ground case registered in Crime No.177/2009 under section 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a) (ii) of E.C. Act 1955 and 403, 353 and 307 of I.P.C. that the detenu he was found in possession of 30 bags of P.D.S. rice and on scrutiny of the materials, 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. Advancing the arguments on behalf of the petitioner learned counsel raised two points. The post detention representation was made on 30.4.2009 and on consideration of the same, the order of rejection came to be passed on 5.1.2009 and a telegraphic message was actually served upon the detenu. Learned counsel would further ad that these communications would not be suffice to satisfy the law and on that ground the detention order would suffer. 5. Secondly, the authority has pointed out that when the detention order came to be passed on 24.4.2009, the bail application filed by the detenu in Crl. M.P.No.638/2009 was already dismissed on 18.4.2009 and no bail application was pending before any Court. But https://hcservices.ecourts.gov.in/hcservices/ the authority has stated in the order "If he comes out on bail, he will indulge in such further activities in future...". The authority has not even stated whether there was any imminent possibility or rule available which impelled him to pass such an order. Thus, it would be quite clear that there was no application of mind on the part of the authority. Under such circumstances, the order will suffer on that ground also. Thus, the order is infirm and it has got to be set aside. 6. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 7. As stated above, the order under challenge came to be passed on 24.4.2009 on the strength of the recommendation made by the sponsoring authority that the detenu has indulged in two adverse cases and one ground case in Crime No.177/2009 registered by the Civil Supplies, Thiruvallur where he was found in possession of 30 bags of PDS rice. It is not in dispute that he made representation to the Central Government on 30.4.2009 and it was also considered and a telegraphic communication was addressed on 5.6.2009. The contention putforth by the learned counsel for the petitioner cannot be countenanced for the simple reason that the telegraphic message would indicate that, a speaking order of rejection was made containing all the reasons therefor. 8. The order of rejection was communicated through the telegraphic message and one cannot come to the conclusion that the order of rejection was only an intimation. In the instant case, it was not the intimation but the telegraphic message contains the entire order on rejection. Hence, the first ground has got to be rejected. 9. In so far as the second ground is concerned, the Court is able to see force in the contention putforth by the learned counsel for the petitioner. It is not on controversy that the detenu moved for bail in respect of the ground case in Crl.M.P.No.638/2009 on the file of the District Sessions Division,, Tiruvallur and the same was dismissed on 18.4.2009 and the detention order came to be passed on 24.4.2009 i.e., within a short span of time. The authority has not stated that whether there was any possibility either imminent or real possibility of the petitioner to come out on bail. On the contrary even without considering the same it was simply stated " if he comes out on bail, he will indulge in such further activities in future ........" which would clearly indicate the non-application of mind. Therefore, without any hesitation, the order of detention has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 10. Accordingly, this habeas corpus petition is allowed setting aside the order of 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 Vsi To 1. The Secretary to Government,, Cooperatiion,Food and Consumer Protection Dept., Chennai-9. 2. The District Magistrate and District Collector, Thiruvallur District. 3. The Secretary to Government, Ministry of Consumer Affairs, Food and Public Distribution, Department Consumer Affairs, Government of India, Krish Bhavan, New Delhi. 4. The Superintendent, Central Prison, Puzhal, Chennai. (in duplicate for communication to detenue) 5. The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai -9. 6. The Public Prosecutor, High Court, Madras. HCP.NO.722 OF 2009 BV(CO) RVL 21.07.2009 https://hcservices.ecourts.gov.in/hcservices/