Madras High Court
S.Kanagarathinam vs The Union Of India on 6 February, 2008
Bench: M.Chockalingam, S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06/02/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU HCP (MD) No.613 of 2007 S.Kanagarathinam .. Petitioner vs 1.The Union of India Rep. by its Additional Secretary Ministry of Consumer Affairs Food & Public Distribution (Department of Consumer Affairs) Krishi Bhavan New Delhi 1. 2.The State of Tamilnadu Rep. by its Secretary to Government Co-operation, Food & Consumer Protection Department Secretariate Chennai 9. 3.The District Collector & District Magistrate Madurai District Madurai 4.The Superintendent of Prisons Central Prison, Madurai .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus to call for the detention order dated 18.11.2007 passed by the third respondent in his proceedings C.M.P.No.04 of 2007 (C.S.) and quash the same as illegal and consequentially direct the respondents to set the detenu Sankar, son of Jawahar at liberty, confined at Central Prison, Madurai. !For Petitioners ... Mr.M.Ajmal Khan ^For Respondents ... Mr.S.P.Samuel Raj Additional Public Prosecutor for RR2 to 4 No appearance for R1 :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of the third respondent passed on 18.11.2007 in proceedings C.M.P.No.04 of 2007 (C.S.). The petitioner, who is the wife of the detenu, has brought forth this petition for a writ of habeas corpus.
2.The affidavit in support of the petition is perused. The Court heard the learned Counsel for the petitioner and also the learned Additional Public Prosecutor for the State.
3.From the perusal of the order, it could be seen that on 13.10.2007, when the Inspector of Police, Civil Supplies Criminal Investigation Department, Madurai Unit, was on duty, the Special Tahsildar, Flying Squad, Office of the District Supply Officer, Madurai, along with one Sankar appeared in the Station and gave a complaint. It is alleged in the complaint that on 13.10.2007, the District Supply Officer, Madurai, along with the Special Tahsildar, Flying Squad, and other Officials who were on duty, received reliable information and made a search in Selvaganesh Rice Mill, situated in Door No.6-91/2B, Chinthamani Road, Chinna Anuppanadi, Madurai, at about 1.00 PM; that they found 222 bags each weighing 50 kgs of boiled rice, intended for Public Distribution System; that at the time of search, the detenu was present in the Rice Mill; that it was ascertained that one Mohan was the owner of the Mill, and the detenu Sankar has obtained that Mill on lease basis from 1995 to 2010; that the said detenu was running the Rice Mill where the paddy was being purchased in the open market and after hulling, it is being sold as rice; that it came to the knowledge of the authorities that he used to procure the ration rice intended for Public Distribution System by paying additional amount over and above the rate fixed by the Government, by illegal means, move the rice clandestinely to his Mill, polish the same and mix it with the open market rice, and by selling the same in the open market, he was making huge profit thereby amassing huge wealth at the expense of the poor card holders, and thus, he diverted the ration rice intended by the Government to the benefit of the poor and downtrodden families at the subsidized rate thereby depriving the poor as well as causing loss to the Government exchequer. It is further alleged that at that time, his statement was recorded by the Flying Squad Tahsildar in the presence of witnesses; and that all these 222 bags of Public Distribution System rice were actually recovered under a cover of mahazar.
4.On the strength of the said complaint, the Inspector of Police, Madurai Civil Supplies Criminal Investigation Department, registered a case in Crime No.808 of 2007 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act, 1955 and arrested him. He was produced before the Judicial Magistrate No.VI, Madurai, and he was sent for judicial remand. He applied for bail, and the conditional bail was also subsequently ordered. The sample rice was taken to the Laboratory for quality analysis. It was also certified that it was actually earmarked for the Public Distribution System.
5.On the above grounds and after looking into the materials available, the third respondent arrived at the subjective satisfaction that the detenu has done acts which are prejudicial to the maintenance of supplies of commodities essential to the community and social order also, and under the circumstances, he has got to be termed as Black Marketeer. Hence, the authority felt that invoking the provisions of Sec.3(1) read with 3(2)(a) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, in preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community in future, an order of detention has got to be passed and accordingly, passed. The said order is under challenge.
6.Advancing the arguments on behalf of the petitioner, the learned Counsel inter alia put forth two points in his sincere attempt of assailing the order of detention.
(i) There was a representation made by the petitioner on 25.11.2007; but, that was not considered for a longtime. From the proforma now supplied by the State, it would be quite clear that the representation, though it was dated as 25.11.2007, is found to be as undated. It is seen from the proforma that the representation was received on 5.12.2007, and remarks were called for from the detaining authority on 6.12.2007, and in turn, he should have called for the remarks from the sponsoring authority; but, the remarks were received only on 3.1.2008. Thus, there was a delay of 28 days. It remained unexplained. This delay would suffice to cause prejudice to the detenu. Under the circumstances, the order has got to be set aside.
(ii) When the representation was made, a request was also made to supply the copy of the affidavit which was placed by the sponsoring authority before the detaining authority. But, this copy has not been supplied till this time. On the contrary, the counter would read that there was no mandate to supply the copy which was asked for. Needless to say that in a case like this, subjective satisfaction, as put forth by the third respondent, could not have been arrived without going through all the materials available including the averments found in the affidavit, which was placed by the sponsoring authority, for passing such a detention order. Thus, the detenu is thoroughly entitled to know the grounds and reasons adduced in the affidavit. The non-furnishing of the copy of the affidavit would go to the root of the matter, and hence, it is also a good ground to set aside the order.
7.In support of his contention, the learned Counsel relied on a Full Bench decision of this Court reported in 2007 (5) CTC 657 (G.KALAISELVI V. THE STATE OF TAMIL NADU AND ANOTHER).
8.The Court heard the learned Additional Public Prosecutor on the above contentions.
9.After going through the materials and in particular, the order under challenge and the grounds on which it is being attacked, this Court has no option than to quash the order. Admittedly, the said order came to be passed by the third respondent on 18.11.2007, terming him as Black Marketeer. According to the detaining authority, his activities are prejudicial to the maintenance of supplies of commodities essential to the community and also social order. A representation, according to the petitioner, was made on 25.11.2007. But, according to the State, it remained undated. It is an admitted fact that the representation was received by the authority on 5.12.2007, and the remarks were called for the very next day i.e., 6.12.2007. But, the remarks were received only on 3.1.2008, and hence, there is a delay of 28 days, which is inordinate. This delay, in the opinion of this Court, remained unexplained, inordinate and inexcusable. This Court is of the view that the same would certainly cause prejudice to the interest of the detenu, which would suffice to set aside the order.
10.As rightly pointed out by the learned Counsel for the petitioner, the detaining authority could have passed the order recording that he has arrived at the subjective satisfaction only after going through all the materials available including the affidavit which was placed by the sponsoring authority. No doubt, the detenu was entitled to know the grounds and reasons on which the sponsoring authority sought for such a detention order. Such affidavit cannot, but be one of the materials available which should have been considered by the detaining authority before passing such order, after arriving at the subjective satisfaction. In the instant case, though it was asked for by the detenu, it has not been supplied to him. From the counter, it could be seen that the law does not require for the same. This Court is unable to agree with such a counter being put forth. In a given case, it is settled law that all the documents which are placed before the detaining authority before they pass the order, should be furnished to the detenu. In the instant case, one of those documents, no doubt, is the affidavit filed by the sponsoring authority before the detaining authority; but, it is not supplied to him. Even assuming that certain documents, in the opinion of the department, need not be served upon the detenu despite his request, and they were irrelevant, in the opinion of the authority, to be supplied, even then, they must adduce all sufficient reasons why it need not be supplied. But, in the case on hand, while it was asked for by the detenu to make effective representation, it was not supplied to him. The contention put forth by the State that law does not mandate so cannot be countenanced. That is another ground which would suffice to set aside the order of detention.
11.Accordingly, this habeas corpus petition is allowed setting aside the order of detention passed by the third respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.
nsv/ To:
1.The Union of India Rep. by its Additional Secretary Ministry of Consumer Affairs Food & Public Distribution (Department of Consumer Affairs) Krishi Bhavan New Delhi 1.
2.The State of Tamilnadu Rep. by its Secretary to Government Co-operation, Food & Consumer Protection Department Secretariate Chennai 9.
3.The District Collector & District Magistrate Madurai District Madurai
4.The Superintendent of Prisons Central Prison, Madurai
5.The Public Prosecutor Madurai Bench of Madras High Court