IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 15.09.2009 Coram The Honourable Mr. Justice M.CHOCKALINGAM and The Honourable Mr. Justice R.SUBBIAH H.C.P. No.1142 of 2009 Vijaya Rani .. Petitioner / Wife of the Petitioner ..vs.. 1. The Secretary to Government, Food and Consumer Protection Department, Fort St.George, Chennai-9. 2. The Commissioner of Police, Chennai City Sub-Urban Area. 3. The Secretary to Government, Food and Consumer Protection Department, Government of India, New Delhi. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, calling for the records in connection with the order of detention passed by the 2nd respondent dated 28.06.2009 in Memo No.4/Black Marketing Act/2009 against the petitioner's husband Saminathan, son of Manthira Nadar, aged about 42 years, who is confined at Central Prison, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty. For Petitioner : Mr.V.Paarthiban For Respondents : Mr.Babu Muthu Meeran, Addl.P.P., for R1 & R2 Mr.M.Deivendran, Spl.C.C.G., for R3 ORDER (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 28.06.2009 in Memo No.4/Black Marketing Act/2009, whereby the husband of the petitioner one Saminathan was detained under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, branding him as a Black Marketeer. https://hcservices.ecourts.gov.in/hcservices/ 2. The Court heard the learned Counsel for the petitioner and looked into the materials available including the order under challenge. 3. Admittedly, on the recommendations made by the sponsoring authority that the detenu was involved in three averse cases, namely (1) Civil Supplies CID., Vellore, Crime No.128/2009 dated 21.03.2009 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 for alleged possession of 58 bags each containing 50 kgs.of PDS ration rice; (2) Civil Supplies CID., Chennai Unit Crime No.272/2009 dated 12.05.2009 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 (3) Civil Supplies CID., Chennai Unit Crime No.320/2009 dated 03.06.2009 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 for alleged possession of 32 bags each containing 50 kgs. of PDS ration rice and also a ground case in Crime No.356/2009 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 and Sections 403, 336 and 307 IPC, stating that on 20.06.2009 at about 15.00 hours, the detenu was found in possession of 65 bags each containing 50 Kgs. of PDS rice and the case came to be registered in the above crime number. On perusal and scrutiny of the materials available, the detaining authority also recorded its subjective satisfaction that it was a fit case where he has got to be branded as a black marketeer since his activities were prejudicial to the public distribution system, and hence there arose necessity to make an order of detention as referred to above and, accordingly, made the order, which is the subject matter of challenge in this petition. 4. The learned Counsel while advancing arguments on behalf of the petitioner, raised two points; firstly, according to the department, he was found in possession of 65 bags each containing 50 kgs.of Public Distribution System rice on 20.06.2009 and a case came to be registered in Crime No.356 of 2009. It is found from the materials, he was actually found in possession of PDS rice at 3.00 PM and a mahazar came to be prepared at 4.10 PM and thereafter, he was taken to the police station and a case came to be registered in Crime No.356 of 2009 under the provisions of the said Act. If it was taken so, the mahazar, which was prepared at the place of interception and recovery of Public Distribution System rice, could not contain the crime number. But the Crime Number came into existence in the recovery mahazar, even prior to the registration of the first information report and actual arrest of the detenu. The Detaining Authority had failed to notice this vital flaw and therefore, he did not get a clarification from the Sponsoring Authority; and secondly, when the arrest was on 20th June, 2009 and pursuant to the registration of Crime No.356 of 2009 by the Civil Supplies, C.I.D., Chennai, he was produced before the Judicial Magistrate concerned and the remand was extended till 02.07.2009; but when the papers were placed before the https://hcservices.ecourts.gov.in/hcservices/ detaining authority, it was shown as if he was remanded till 03.06.2009. This shows, either the records were not properly placed by the sponsoring authority or the detaining authority has not scrutinized them properly. This would be indicative of the non-application of mind, which would prejudice to the interest of the detenu and hence, the order has got to be set aside. 5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6. It is not in controversy that pursuant to the recommendations made by the sponsoring authority, the second respondent-detaining authority made the detention order under challenge on 28.06.2009. Admittedly, three Adverse cases and one ground case were noticed and recorded. As could be seen from the records available, a case under section 356 of 2009 was registered by the Civil Supplies, C.I.D., Chennai at about 5.30 pm in C.B., C.I.D., Police Station at Chennai and it could be further seen that the detenu was intercepted at about 3.10 pm and the recovery of the PDS rice was made and a mahazar was also prepared at about 4.10 pm. If really the recovery mahazar was prepared at 4.10 pm and a case was registered only at 5.30 pm, the recovery mahazar could not have contained the crime No.356 of 2009 and under such circumstances, the detaining authority should have called for a clarification from the sponsoring authority, but not done so. Apart from that, in the case once the arrest was made on 20th June 2009; he was produced before the Judicial Magistrate concerned and he was also remanded till 02.07.2009, as could be seen from the available materials. On the contrary, when it was referred to in para 4 of the grounds of detention, it is found that the remand was extended till 03.06.2009, which is found to be the discrepancy on the material particulars. Even as per the records of the department, he was arrested on 20.06.2009 and hence, no remand could have been extended till 03.06.2009. Under such circumstances, the 2nd respondent-detaining authority should have called for a clarification, but has not done so. It is clear that, as rightly pointed out by the learned counsel for the petitioner, either there was no proper scrutiny of materials or if properly done, it would be indicative of the non-application of mind on the part of the detaining authority. Under such circumstances, in either way, the Court is of the considered opinion that the order under challenge suffers from infirmity and it is liable to be set aside. 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 gl https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government, Food and Consumer Protection Department, Fort St.George, Chennai-9. 2. The Commissioner of Police, Chennai City Sub-Urban Area. 3. The Secretary to Government, Food and Consumer Protection Department, Government of India, New Delhi. 4. The Superintendent, Central Prison, Puzhal, Chennai. 5. The Public Prosecutor High Court, Madras. + 1 cc to Mr.M.Devendran, SPCCG, SR.47072. H.C.P. No.1142 of 2009 BKY (CO) A.S./30.09.2009 https://hcservices.ecourts.gov.in/hcservices/