(Order of the Court was made by M.CHOCKALINGAM, J) This Writ Application challenges the order of the third respondent made in his Detention Order No.19/2008(CS) dated 22.11.2008 whereby the petitioner's husband was ordered to be detained under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980(Act 7 of 1980) terming him as a "Black Marketeer".
2. It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the detenu was involved in one adverse case in Crime No.92/2008 under Sections 6(4) of TNSC(RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 registered by Dindigul Civil Supplies Criminal Investigation Department and in one ground case in Crime No.1011/2008 under Section 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C.Act 1955, the detaining authority, after looking to the materials available, took the view that the activities of the detenu would clearly indicate that for purpose of enriching himself, at the cost of the poor people, he was acting against the public distribution system and since the activities of the detenu were against the maintenance of supplies of the essential commodities and hence, he should be branded as "Black Marketeer" and an order of detention was to be passed and accordingly, the order was made, which is the subject matter of challenge before this Court.
3. Learned counsel appearing for the petitioner in his sincere attempt assailing the order of detention brought to the notice of the Court the following grounds:-
(i) Firstly, the order under challenge came to be passed on 22.11.2008. The detenu was arrested pursuant to the incident on 19.11.2008. The bail application was filed on the very day and notice was ordered to the respondent on 21.11.2008 but the application for bail was yet pending. Though the detaining authority has pointed out in his order that the bail application was pending, there was possibility of the detenu coming out on bail but even this day the bail application is pending. Thus, the detaining authority has prejudged the situation.
(ii) Secondly, the entire quantum of rise i.e. 40 bags each weighing 50 kgs were actually alleged to have seized by the Inspector of Police, Essential Commodities Wing, CS CID on 19.11.2008 were actually deposited with Dindigul Civil Supplies Godown and samples were taken and actually placed before Civil Supplies Regional Analysis Department, Karur. But the statement recorded from the witness would clearly indicate that all were actually deposited in the Civil Supplies Godown in Dindigul including the samples taken for analysis. The deposit of the sample before the Regional Analysis Department at Karur was no where stated and hence, it was a fit case where a clarification should have been sought for by the detaining authority but not done.
(iii) Thirdly, translation copy of the analysis report was not supplied to the detenu.
(iv) In the arrest report under
Section 58 Cr.P.C., in English version, the custody of the detenu was shown as on 19.12.2008 but in the Tamil version, it is actually shown that the detenu was taken into custody on 19.11.2008. Thus, it is found to be discrepant, but no clarification was called for.
(v) Added further the learned counsel that while the order of detention shows the Detention Order number as 19/2008(CS) whereas in the grounds of detention given, detention order number was shown as 18/2008(CS). This is also found to be discrepant.
4. The Court heard the learned Additional Public Prosecutor on the above contentions and looked into the materials available. After doing so, the Court has no other option than to set aside the detention order on the following reasons:
(i) Firstly, the said incident of seizure had taken place according to the department on 19.11.2008 and that bail application was filed on the very day and notice was admittedly taken on 20.11.2008 and that bail application is still pending. While matter stood thus, the detaining authority has stated in his order that the detenu might come out on bail. It is nothing but prejudging the order to be passed in the bail application.
(ii) Admittedly, while the department would clearly indicate that the entire seized property was deposited in a Civil Supplies Godown at Dindigul and only some sample was placed before the Regional Analysis Department at Karur. When read the Statement recorded under
Section 161 Cr.P.C., it would clearly reveal that the entire property including sample was deposited in the Civil Supplies Godown at Dindigul.
(iii) Added further the learned counsel, in the arrest report under
Section 58 Cr.P.C. in English version, the arrest of the detenu was mentioned as 19.12.2008 whereas in the Tamil version, it was shown that the detenu was arrested on 19.11.2008. These vital discrepancies are noticed. The detaining authority should have called for a clarification. If not, then it would tell upon the fact that the detaining authority has mechanically signed the order and has not even gone into it. Had the scrutiny has been done, a clarification should have been sought.
(iv) The detention order shows the detention order No.19/2008 whereas in the grounds of detention, the detention order is shown as 18/2008.
5. All the above grounds would go to show that it is an utter carelessness on the part of the detaining authority to pass such an order and serve on the detenu. In such circumstances, it would be suffice to set aside the order of detention. Accordingly, the order of detention is set aside. The detenu is directed to be set at liberty forthwith unless he is required in connection with any other case. The Habeas Corpus Petition is allowed.
6. Before concluding the order, the Court has to necessarily make a comment on the then Inspector of CS CID, Dindigul who prepared all the documents. While the detenu was taken into custody on 19.11.2008, in the arrest report under
Section 58 Cr.P.C.in English Version, it was shown as that the detenu was taken into custody on 19.12.2008. In the considered opinion of the Court, it was carelessly done because the document was hand written. It also casts a doubt in the mind of the Court whether it was done deliberately. A responsible officer like the CS CID Inspector of Police meant for that purpose is not expected to do so. It is not a mistake in the opinion of the Court but it has been done mechanically, which requires a departmental action in the hands of the higher authority. The alleged act of the detenu is a crime against the society. It is due to lapse on the part of the official concerned, the detenu is entitled to be set at liberty. In order to answer the call of the society, the Inspector General of Police is directed to take necessary action on the official concerned. A report must be placed in the hands of this Court in respect of the action taken.
Post the matter for filing compliance report on 22nd June, 2009.
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1. ADDITIONAL SECRETARY GOVERNMENT OF INDIA,MINISTRY OF CONSUMER AFFAIRS,FOOD 7 PUBLIC DISTRIBUTION(DEPARTMENTS OF CONSUMER AFFAIRS),ROOM NO.270, KRISHI BHAVAN, NEW DELHI - 110 001
2. THE SECRETARY GOVERNMENT OF TAMIL NADU, CO-OPERATION , FOOD AND CONSUMER PROTECTION DEPARTMENT, SECRETARIAT, CHENNAI-9
3. THE DISTRICT COLLECOR AND DISTRICT MAGISTRATE, DINDIGUL DISTRICT, DINDIGUL
4. THE JOINT SECRETARY TO GOVERNMENT OF TAMIL NADU PUBLIC (LAW AND ORDER) DEPARTMENT, FORT ST.GEORGE, CHENNAI - 600 009
5. THE INSPECTOR GENERAL OF POLICE, CHENNAI (FOR TAKING NECESSARY ACTION ON THE OFFICIAL CONCERNED)
6. THE INSPECTOR OF POLICE, CS.CID, DINDIGUL
7. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI
8. THE SUPERINTENDENT, CENTRAL PRISON, MADURAI
9. THE SECTION OFFICER, CRIMINAL SECTION, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI (FOR WATCHING THE REPORT)