IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29-9-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN H.C.P.No.814 of 2010 Easwaran .. Petitioner vs 1.The State of Tamil Nadu Represented by its Secretary Department of Co-operation, Food and Consumer Protection Department Fort St. George Chennai 600 009. 2.The District Magistrate and District Collector Salem District Salem 3.The Union of India Represented by the Addl. Secretary to Government of India Ministry of Consumer Affairs 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 C.M.P.No.8/PBMMSEC Act/2010(J3) dated 22.4.2010 on the file of the second respondent herein and quash the same as illegal and direct the respondents to produce the detenu Subramani, son of Mandiri, aged about 29 years, now confined in Central Prison, Salem, before this Court and set him at liberty. For Petitioner : Mr.R.Sankarasubbu For Respondents : Mr.Babu Muthu Meeran Additional Public Prosecutor for RR! & 2 Mr.Philip Ravindran Jesudoss ACGSC for R3 https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of the second respondent dated 22.4.2010, whereby the brother of the petitioner by name Subramani was ordered to be detained under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 branding him as a black marketeer. 2.All the materials are looked into and in particular, the order under challenge along with the grounds of detention. 3.The Court heard the learned Counsel for the petitioner. 4.As could be seen from the available materials, pursuant to the recommendations made by the sponsoring authority that the detenu was involved in two adverse cases namely (1) Salem Civil Supplies Criminal Investigation Department Crime No.202/2010 under Sec.6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955 and (ii) Salem Civil Supplies Criminal Investigation Department Crime No.233/2010 under Sec.6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955 and also in a ground case registered by Salem Civil Supplies Criminal Investigation Department Unit in Crime No.240/2010 under Sec.6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955 for an occurrence that has taken place on 11.4.2010, when he was found in possession of 23 bags each containing 50 kgs. of PDS rice and on scrutiny of the materials available, 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, was of the opinion that in order to prevent him from doing so, an order of detention was to be made branding him as a black marketeer, and thus made the order which is the subject matter of challenge before this Court. 5.Advancing the arguments on behalf of the petitioner, the learned Counsel in his sincere attempt of assailing the order, would submit that in the instant case, the detaining authority has made the order of detention without any application of mind, and thus it was erroneous and defective. In order to substantiate his contention, the learned Counsel took the Court to the materials placed. According to him, the detenu was shown arrest in the two adverse cases and in the ground case on 11.4.2010, and produced before the Judicial Magistrate concerned, and he moved for bail in Crl.M.P.Nos.1985, 1986 and 1987/2010 in all the three cases respectively before the Judicial Magistrate No.II, Salem, and all came up for orders on 22.4.2010, and they were all dismissed on the same day, and the order under challenge was also clamped on the very day; but the authority has stated that there was a real possibility of his coming out on bail. https://hcservices.ecourts.gov.in/hcservices/ 6.Added further the learned Counsel that the first adverse case was registered on 25.3.2010, and the second adverse case was on 8.4.2010, whereby some accusation was made; that the third case namely the ground case, was registered on 11.4.2010; and that while all the bail applications were dismissed, the observation made by the authority that there was a real possibility of the detenu coming out on bail, was without any basis at all and thoroughly unfounded. 7.The learned Counsel would further add that according to the statement made by the Godown Keeper, and also as could be seen from the order, samples were taken out of the 23 bags, and they were sent for analysis; but according to the analyst's report, all the 23 bags were received for the purpose of analysis, and thus it is highly doubtful what was actually sent to the analyst; that under the circumstances, a clarification should have been called for, but the authority has failed to do so, and subjective satisfaction could not have been recorded proper on the basis of the materials placed before him, and hence it has got to be set aside. 8.The Court heard the learned Additional Public Prosecutor for the State and also the learned Additional Central Government Standing Counsel on the above contentions and paid its anxious consideration on the submissions made. 9.On scrutiny of the materials, this Court has to necessarily agree with the learned Counsel on all the grounds stated above. As could be seen from the materials, the detenu was involved in three cases mentioned above, out of which, the third case is shown as the ground case which was registered for an occurrence that took place on 11.4.2010, when he was found in possession of 23 bags of PDS rice each containing 50 kgs. From the materials, it could be seen that he was shown arrest in all the three cases on 11.4.2010, and produced before the Judicial Magistrate concerned. It is an admitted position that he moved for bail in Crl.M.P.Nos.1985, 1986 and 1987 of 2010 before the Judicial Magistrate No.II, Salem, and they were dismissed on 22.4.2010. The order under challenge came to be made on the very day. Under the circumstances, the observation made by the authority that there was a real possibility of the detenu coming out on bail, was without any basis or material, much less cogent material, which the law would require. 10.Apart from the above, a perusal of the statement made by the Godown Keeper, and also the order under challenge would indicate that samples were taken from all the 23 bags and were sent for analysis. But as per the report of the analyst, 23 bags were received for the purpose of analysis. Thus as rightly pointed out by the learned Counsel, what was actually sent to the analyst is doubtful. In such circumstances, a clarification should have been called for by the detaining authority, but not done so, and hence subjective satisfaction could not have been recorded by him on the materials placed before him. Therefore, on these grounds the order is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 11.In the result, this habeas corpus 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 custody 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 Department Fort St. George Chennai 600 009. 2.The District Magistrate and District Collector Salem District Salem 3.The Addl. Secretary to Government of India Ministry of Consumer Affairs and Public Distribution (Department of Consumer Affairs) Room No.270, Krishi Bhavan New Delhi 1. 4.The Public Prosecutor High Court, Madras. 5.The Judicial Secretary to Government, Public(Law & Order) Fort St.George, Chennai-9. 6.The Superintendent, Central Prison, Salem 1 cc To Mr.Philip Ravindran , Advocate, SR.92576 HCP No.814 of 2010 la(co) pmk.13.10.2010. https://hcservices.ecourts.gov.in/hcservices/