IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12-10-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH HCP No.1109 of 2009 A.Murugesan .. Petitioner vs 1.The Secretary to Government Food, Co-Operation and Consumer Protection Department Fort St. George, Chennai 600 009. 2.The District Collector and the District Magistrate Salem District, Salem. 3.The Additional Secretary to Government of India Ministry of Consumer Affairs, Food and Public Distribution Department of Consumer Affairs Government of India (Room No.270), Krishi 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 in connection with the order of detention passed by the second respondent dated 27.6.2009 in C.M.P.No.16/PBMMSEC Act/2009(J3) against the detenu Kamaraj, aged about 43 years, S/o.Veerappa Mudaliar, who is confined in Central Prison, Salem, and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty. For Petitioner : Mr.A.K.S.Thahir For Respondents : Mr.Babu Muthu Meeran Additional Public Prosecutor for RR1 & 2 Mr.M.Devendran SPCCG 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 first respondent dated 27.6.2009 whereby one Kamaraj, son of Veerappa Mudaliar, the nephew of the petitioner herein was ordered to be detained under the provisions of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act 1980 as a Black Marketeer. 2.The Court heard the learned Counsel for the petitioner and all the materials and in particular the order under challenge are looked into. 3.Admittedly, pursuant to the recommendations made by the sponsoring authority that the said detenu was involved in four adverse cases namely (i) Salem Civil Supplies Criminal Investigation Department Crime No.348/2007 dated 3.7.2007 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955; (ii) Salem Civil Supplies Criminal Investigation Department Crime No.352/2007 dated 5.7.2007 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955; (iii) Salem Civil Supplies Criminal Investigation Department Crime No.38/2008 dated 10.1.2008 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 and (iv) Salem Civil Supplies Criminal Investigation Department Crime No.39/2008 dated 10.1.2008 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 and he was also found in possession of 2500 kgs. of PDS Rice on 22.6.2009, and a case came to be registered in Salem Civil Supplies Criminal Investigation Department Crime No.298/2009 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 and 307 of IPC, the detaining authority after going through the materials, recorded its subjective satisfaction that it is a fit case where he should be detained under the Act since his activities were detrimental and prejudicial to the public distribution system, and accordingly an order came to be made. 4.Advancing arguments on behalf of the petitioner, the learned Counsel would submit that a perusal of the order under challenge would indicate that four adverse cases were actually registered against him; that out of these four cases referred to above, in three cases, quality certificates were not obtained; that all these cases ended either in admonition or in imposition of fine; that in no point of time, he was sentenced to imprisonment; and that there is nothing to indicate that he has been dealing with the same or his activities were prejudicial to the public distribution system. 5.Added further the learned Counsel that a perusal of the order would indicate that at one place it is stated that the said detenu has hoarded and removed the rice intended for the card holders; but, inconsistently it is found in the other place that he was illegally purchasing the public distribution system rice from the card holders, and thus the sponsoring authority has placed the materials one indicating that he has been hoarding and removing the rise intended for the PDS, while the other indicating that he has purchased the https://hcservices.ecourts.gov.in/hcservices/ same illegally; and that under the circumstances, the detaining authority should have called for a clarification but failed to do so. 6.Added further the learned Counsel that the detaining authority has pointed out in its order that he has not made any bail application in Crime No.298/2009, but has observed that if he comes out on bail, he is likely to indulge in such activities, and under the circumstances he should be detained. 7.Added circumstance by which according to the learned counsel the order would suffer, is that a pre-detention representation was made on 3.3.2009 apart from two other representations already made; but, no one of the representations was actually considered despite acknowledgement made by the authority, and under the circumstances, all would suffice to set aside the order. 8.The Court heard the learned Additional Public Prosecutor for the respondents 1 and 2 and also the learned Counsel for the third respondent and paid its anxious consideration on the submissions made. 9.It is not in controversy that pursuant to the four adverse cases referred to above and one ground case in Crime No.298/2009, registered by Salem Civil Supplies Criminal Investigation Department that he was found in possession of 2500 kgs. of PDS rice and also on the recommendation, the detaining authority thought it fit that he should be detained after recording its subjective satisfaction that his activities were prejudicial to the public distribution system. On scrutiny of the entire materials and hearing the submissions made, this Court is of the considered opinion that the order suffers in the manner as follows. 10.A perusal of the order would indicate that the sponsoring authority has placed the materials indicating that he has been hoarding and removing the rice and thus he has been stealing. On the contrary, the observation made by the authority at the end of paragraph 5 of the order would indicate that he has purchased PDS rice from the card holders illegally. It is abundantly clear that there were two things, one to say that he has been hoarding or removing and the other to say that he was actually purchasing illegally, and both cannot go together. While such a recommendation was made, a duty was cast upon the detaining authority to call for an explanation, but miserably failed to do so. 11.Apart from the above, in the instant case, it is an admitted position that he has not made any bail application before any Court of criminal law in Crime No.298/2009 and the same is also recorded by the detaining authority. But, at the same time, the authority would further add that bail was likely to be granted, and if he is let at large, his activities would be prejudicial to the public distribution system. While not even a bail application was filed before a Court of criminal law, it would be too early for the authority to record that he is likely to come out on bail either, or if he is let to remain at large, he will indulge in such activities in future which would be prejudicial to the maintenance of supplies of commodities essential to the community. This would be indicative of the non-application of mind, and it is only an expression of the https://hcservices.ecourts.gov.in/hcservices/ impression made by the authority without any material, much less cogent material whatsoever. Under the circumstances, the order would suffer in the above grounds. The contention put forth by the learned Counsel for the petitioner that in four adverse cases, he was either admonished or actually fined cannot be a reason to set aside the order. But, on the two grounds mentioned above, the order is liable to be set aside. 12.Accordingly, this habeas corpus petition is allowed setting aside the order of the first respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case. nsv/ Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1. The Secretary to Govt., Food, Co-Operation and Consumer Protection Dept., Fort St., George, Chennai 600 009 2. The District Collector & District Magistrate, Salem Districgt, Salem. 3. The Addl. Secretary to Government of India, Ministry of Consumer Affairs, Food & Public Distribution Dept., of Consumer Affairs, Govt. of India, (Room No.270) Krishi Bhavan, New Delhi 110 001. 4. The Superintendent, Central Prison, Salem. 5. The Public Prosecutor, High Court, Madras 104. + 1 cc to Mr.A.K.S. Thahir, Advocate SR.53028 + 1 cc to Mr.M.Devendran, Advocate SR.53079. HCP No.1109 of 2009 PA(CO) EU 26.10.2009. https://hcservices.ecourts.gov.in/hcservices/