IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 13.07.2009 Coram The Honourable Mr. Justice M.CHOCKALINGAM and The Honourable Mr. Justice C.S.KARNAN H.C.P. No.695 of 2009 Fathima ... Petitioner ..Vs.. 1. The State of Tamil Nadu, rep.by its Secretary to Government, Co-operation, Food and Consumer Protection Department, Secretariat, Chennai-9. 2. The Commissioner of Police, Chennai Suburban Area, Chennai. 3. The Union of India, rep.by its Secretary to Government, Food and Consumer Protection Department, Ministry of Consumer Affairs Public Distribution, Government of India, New Delhi. ... Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, call for the records in connection with the order of detention passed by the 2nd respondent dated 26.03.2009 vide Memo No.01/Black Marketing Act/2009 against the petitioner's husband Michael, son of Mariya Anthony, Male, aged 47 years, who is confined at Central Prison, Puzhal, Chennai and set aside the same and direct the respondents to produce him before this Court and set him at liberty. For Petitioner : Mr.R.Thanjan for Mr.E.Edwig https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.N.R.Elango, Addl.P.P., for R1 & R2 Mr.N.K.M.Sahadev, Spl.C.C.G., for R3 O R D E R (Order of the Court was made by M.CHOCKALINGAM, J.,) Challenge is made to an order of detention made by the second respondent herein dated 23.06.2009 in Memo No.01/Black Marketing Act/2009, whereby the husband of the petitioner one Michael was detained under Section 3(2)(a) read with 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 7 of 1980), terming 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, on the recommendations made by the sponsoring authority that the said Michael was involved in three averse cases, namely (1) Civil Supplies CID., Chennai Unit Crime No.46/2007 dated 01.02.2007 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a) (ii) of Essential Commodities Act 1955 for alleged possession of 30 bags each containing 50 kgs.of PDS ration rice; (2) Civil Supplies CID., Chennai Unit Crime No.1967/2008 dated 09.11.2008 under Sec.6 (4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 for alleged possession of 1175 kgs.of PDS ration rice in 25 bags; and (3) Civil Supplies CID., Thiruvallur Unit Crime No.121/2009 dated 14.03.2009 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 for alleged possession of 18 bags each containing 50 kgs. of PDS ration rice and also a ground case in Crime No.151/2009 registered by the Civil Supplies, CID., Chennai Unit under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955, stating that on 18.03.2009 at about 20.00 hours, the detenu was found in possession of 55 bags each containing 50 Kgs. of PDS rice and the case came to be registered in the above crime number. The detaining authority, on perusal and scrutiny of the materials available, was of the opinion that the activities of the detenu were prejudicial to the public distribution system and hence in order to prevent him from indulging any further activities in future, an order of detention has got to be made under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, and accordingly made the order, which is the subject matter of challenge in this petition. https://hcservices.ecourts.gov.in/hcservices/ 4. Assailing the order under challenge, the learned Counsel raised the following points: Firstly, it is alleged in the ground case that on 18.03.2009, the detenu was found in possession of 55 bags of PDS rice each weighing 50 kg. According to him, actually the detenu had filed a bail application in M.P.No.479/2009 inCrime No.151/2009 before the Principal District and Sessions Court at Tiruvellore and the same was dismissed on 25.03.2009; but when a special report was sent by the sponsoring authority to the detaining authority on 24.03.20089, it was stated as if the bail application filed by the detenu was dismissed earlier and thus, the fact, which was stated above, was thoroughly misleading and against the true state of affairs and under such circumstances, the subjective satisfaction could not have been arrived at by the detaining authority properly. Secondly, a post-detention representation was made on 11.04.2009 to the Central Government and the same was received on 16.04.2009, but it has not been considered by the Central Government till this date. Added further the learned counsel that in so far as one of the adverse cases in Crime No.1967/2008 is concerned, the detenu was actually remanded by the Judicial Magistrate, Tiruvellore, but in the recommendations made by the sponsoring authority, it was stated that he was remanded by the Judicial Magistrate, Ambattur in one place and the Judicial Magistrate, Egmore in another place. This would also go to show that all proper materials were not placed before the detaining authority. Thus the order is infirm and it has got to be set aside. 5. The Court heard the learned Additional Public Prosecutor and the learned Central Government Standing Counsel on the above contentions and paid its anxious consideration on the submissions made. 6. After perusal of the entire materials, it could be seen that the order of detention against one Micheal, the husband of the petitioner, came to be made on 26.03.2009 on the strength of the recommendation made by the sponsoring authority to the detaining authority that three adverse cases and one ground case in Crime No.151/2009 were registered against him. As rightly pointed out by the learned counsel for the petitioner, the following defects are noticed, which would lead the Court to come to the irresistible conclusion that the order has got to be declared as infirm and has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 7. Needless to say, in the given case like this, when the sponsoring authority places its recommendations before the detaining authority to make an order of detention under the Enactment with a view to prevent the detenu from indulging in any activities in future, the detaining authority must arrive at the subjective satisfaction that such circumstances are prevailing and hence, in order to prevent him from indulging in such activities in future, a prevention order has got to be made and only thereafter, the detaining authority passes the order. Further, it remains to be stated that when the preventive detention order is the one, which is actually passed in anticipation of certain acts, which the detenu is likely to commit in future, the sponsoring authority owes a duty to place all the correct materials before the detaining authority since it touches the right and freedom of the individual guaranteed under the Constitution. But, in the instant case, the sponsoring authority has miserably failed to do so. Firstly, the bail application filed by the detenu in M.P.No.479 of 2009 on the file of the Principal District and Sessions Court, Tiruvellore was actually dismissed, as per the order found in the record book at page No.90, on 25th March 2009. But in a special report, which was placed by the sponsoring authority before the detaining authority on 24.03.2009, it was stated that the bail application in M.P.No.479 of 2009 was already dismissed and thus, it is quite clear that it was not only misleading but it was an attempt to place incorrect materials before the detaining authority. Added further, he was remanded by the Judicial Magistrate, Tiruvellore, in connection with one of the adverse cases, namely, crime No.1967/2008; but the sponsoring authority placed its materials before the detaining authority, stating that he was remanded by the Judicial Magistrate, Ambattur in one place and the Judicial Magistrate, Egmore in another place. Thus, it is also found to be misleading. Apart from the above, there was a post-detention representation was made by the detenu on 11.04.2009 and the same was received by the Central Government on 16.04.2009, but till date it remains unconsidered. Needless to say, it has caused, no doubt, prejudice to the detenu and thus, 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 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 https://hcservices.ecourts.gov.in/hcservices/ gl To 1. The Secretary to Government, Food, Co-operation and Consumer Protection Department, Secretariat, Chennai-9. 2. The Commissioner of Police, Chennai Suburban Area, Chennai. 3. The Secretary to Government, Union of India, Food and Consumer Protection Department, Ministry of Consumer Affairs Public Distribution, Government of India, New Delhi. 4. The Superintendent, Central Prison, Puzhal, Chennai. 5. The Joint Secretary to Government, Public (Law & Order) Department, Fort St.George, Chennai-9. 6. The Public Prosecutor, High Court, Madras. +1 cc to Mr.K.M.Sukadev, Advocate, SR.No.30521 +1 cc to Mr.I.Jesu, Advocate, SR.No.30811 H.C.P. No.695 of 2009 PUR {CO} TP/22.7.2009. https://hcservices.ecourts.gov.in/hcservices/