IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.09.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH HCP No.1020 of 2009 P.Latha ..Petitioner Vs 1.The Secretary to Government Cooperation, Food and Consumer Protection Department Secretariat, Chennai 600 009. 2.The District Collector and District Magistrate of Erode District, Erode. 3.The Additional Secretary to Government of India, Ministry of Consumer Affairs, Food and Public Distribution, (Department of Consumer Affairs), Room No.270, Krish Bhavan, New Delhi – 110 001 .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus calling for the records relating to the order of detention passed by the 2nd respondent in C.No.2/PBMMSEC ACT/2009 (M3) dated 8.6.2009 against the petitioner's husband K.Panneerselvam, son of Karuppannan aged about 47 years, who is confined at Central Prison, Coimbatore 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 Additional Public Prosecutor for R1 & R2. Mr.G.Gurulingam,S.C.G.S.C. 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 of the second respondent made in C.No.2/PBMMSEC ACT/2009 (M3) dated 8.6.2009 whereby the husband of the petitioner namely K.Panneerselvam 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. 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. Concededly, the order under challenge came to be passed on 8.6.2009 pursuant to the registration of two adverse cases namely (i) Erode Civil Supplies CID, Crime No.517/2008 dated 9.6.2009 u/s 6 (4) of TNSC (RDCS) order 1982 r/w Sec.7(1)(a)(ii) of E.C. Act, 1955 for alleged possession of 60 bags of PDS rice weighing 50 kgs each (ii) Erode Civil Supplies CID, Cr.No.785/2009 dated 22.8.2009 u/s 6 (4) of TNSC (RDCS) order 1982 r/w Sec. 7(1)(a)(ii) of E.C. Act,1955 for alleged possession of two bags weighing 50 kgs each and also a ground case in Crime No.201/2009 Civil Supplies C.I.D., Erode u/s 6 (4) of TNSC (RDCS) order 1982 r/w 7(i)(a)(ii) of EC Act 1955 for the alleged possession of 52 bags of PDS rice each containing 50 kgs. The rice bags were placed for analysis and it was also confirmed that it was PDS rice. All the materials pursuant thereto were placed before the Board. On scrutiny of the materials available, 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, the learned counsel in his sincere attempt of assailing the order under challenge made the following two submissions. Firstly, when a person was arrested, the law would require to intimate as to the place, time and the purpose for which he was arrested should be made known to his relatives, but as could be seen from the available materials, it does not contain either the time of arrest or under what provision he was arrested. It is alleged that a message was actually given to the paternal uncle of the detenu by name one Arumugam through cell phone. It is quite clear from Page No.53 of the booklet that it does not contain necessary particulars as expected to be done. Secondly, the case of the department was that a detailed telegraphic message was sent to Smt.Latha, wife of the detenu Panneerselvam but it was not an authenticated copy or a certified copy. Thus, in the absence of any proof, the above communication cannot be given any credence. Hence, it would be quite clear that immediately after the arrest, it has not been properly informed to https://hcservices.ecourts.gov.in/hcservices/ the relatives of the detenu. Hence, the detention order would suffer. 5. Added further learned counsel, in the instant case, the bail application was actually made and it was also dismissed on 5.6.2009. The order of detention came to be passed on 8.6.2009 in which the detaining authority has pointed out that " I am also aware that there was real possibility of his coming out on bail by filing bail application for the above case before the same court or Higher Court." It was without cogent material whatsoever and it was only an apprehension in the mind of the authority. Therefore, for all the above reasons, the detention order would suffer and the detention order has got to be set aside. 6. The Court heard the learned counsel for the State on the above contentions. 7. On scrutiny of the entire materials available, the Court is able to see force in the contention putforth by the learned counsel for the petitioner. It is not in controversy that the detaining authority, after recording the subjective satisfaction that the activities of the detenu were prejudicial to the Public Distribution System, since he had involved in two adverse cases and one ground wherein he was found in possession of 52 bags of PDS rice, had passed the order of detention. It is pertinent to point out that it is mandate in law that immediately after the arrest, the relatives of the detenu should be informed about the arrest. The learned counsel for the State took the Court to page No.53 wherein the place and time of arrest are mentioned and the Inspector, Civil Supplies CID has also signed in the intimation. Though it is found that one Arumugam, paternal uncle of the detenu was intimated through his cell phone, the communication did not contain the purpose for which he was arrested or the provision of law under which he was arrested. Thus, it can be well stated that it is not a sufficient information in the eye of law. The learned counsel for the State also took the Court to the Telegraphic message alleged to have been given to one Latha, wife of the detenu. A perusal of the same would indicate that it is not an authenticated copy or a certified copy from the telegraph department. Hence, no evidentiary value could be attached. In the absence of any acceptable proof, it cannot be stated that there was any telegraphic message given to the wife of the detenu. Under such circumstances, it can be well stated that no proper intimation or information as to the arrest was given to any of the relatives of the detenu. 8. Equally, it is an admitted position that the bail application was made in Crime No.201/2009 before the Judicial Magistrate-III, Erode in Crl.M.P.No.3925/2009 and the same was dismissed on 5.6.2009 but no subsequent application was made or any bail application was pending before the Court of criminal law. While the matter stood thus, the detaining authority has stated in the order that "I am also aware that there was real possibility of his coming out on bail by filing bail application for the above case before the same court or Higher Court, since in similar cases bails are granted by the concerned court or Higher courts after lapse of time". This is an expression of apprehension in the mind of the authority without any https://hcservices.ecourts.gov.in/hcservices/ material whatsoever. In the absence of any cogent material, such an observation made by the authority, as one of the reasons which impelled him to make an order of detention, cannot be accepted. Hence, both the grounds putforth by the petitioner is accepted by the Court. Hence, the order suffers from infirmity and it is liable to be set aside. 9. 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 Cooperation, Food and Consumer Protection Department, Secretariat, Chennai 600 009. 2.The District Collector and District Magistrate of Erode District, Erode. 3.The Additional Secretary to Government of India, Ministry of Consumer Affairs, Food and Public Distribution, (Department of Consumer Affairs), Room No.270, Krish Bhavan, New Delhi – 110 001 4.The Public Prosecutor High Court, Madras. +1 cc to Mr.C.Gurulingam, Advocate, SR.No.47561 HCP No.1020 of 2009 KSK {CO} TP/30.9.2009. https://hcservices.ecourts.gov.in/hcservices/