(Order of the Court was made by M.CHOCKALINGAM, J.,) Challenge is made to an order of detention made by the 1st respondent herein dated 21.04.2009 in Order C.No.03/PBMMSEC.Act/IS/2009, whereby the petitioner, namely, one Kunjumon @ Kunjan, was detained under Section 3(2)(a) read with 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 7 of 1980), terming 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. Admittedly, pursuant to the recommendations made by the sponsoring authority that the petitioner/detenu was involved in one averse case, namely, Coimbatore Civil Supplies CID., Crime No.943/2008 dated 13.12.2008 under Sec.6(4) of T.N.S.C.(R.D.C.S.) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955, for alleged possession of 20 bags, each containing 50 kgs.of PDS ration rice and also a ground case in Crime No.141/2009 registered by the Civil Supplies, CID., Coimbatore Unit under Sec.6(4) of T.N.S.C.(R.D.C.S.) Order, 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955, alleging that on 10.04.2009 at about 06.00 hours, the detenu was found in possession of 60 bags each containing 50 Kgs. of PDS rice and the case came to be registered in the above crime number and the sample of seized rice was also sent to the Manager, Tamil Nadu Civil Supplies Corporation, Coimbatore for getting quality certificate and the same was also confirmed that it was the rice meant for the public distribution system and hence, on perusal and scrutiny of the materials available, the detaining authority also recorded its subjective satisfaction that the activities of the detenu were prejudicial to the public distribution system, and hence in order to prevent him from indulging any further activities in future, an order of detention has got to be made under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities 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 raised the following points;
firstly, it is alleged in the ground case that on 10.04.2009, the detenu was found in possession of 60 bags each containing 50 kgs. of PDS rice and a case was registered by the Civil Supplies, C.I.D., Coimbatore, in Crime No.141 of 2009 and actually after registration of the case, he was remanded and a remand warrant has also been prepared and in a form of remand warrant, as found in page 41 of the booklet, it was found that the date to produce the detenu before the concerned Judicial Magistrate as 24.04.2008, whereas the incident took place on 10.04.2009;
secondly, in so far as the quality certificate, as found in page 52 of the booklet, is concerned, the same was issued by the Manager of Department; but in page 3 of the order under challenge, it is found to be one issued by the Deputy Manager and thus, there was a discrepancy as to who issued the certificate; and thirdly, when the quality certificate was looked into, it shows that it did not contain the date of sampling and also the date of receipt was shown as 09.04.2009, which is not true. All these would go to show that the detaining authority should have called for a clarification, but failed to do so and it is nothing but non-application of mind on the part of the detaining authority and thus, the order is infirm and it has got to be set aside.
5. The Court heard the learned Additional Public Prosecutor and the learned Central Government Standing Counsel on the above contentions and paid its anxious consideration on the submissions made.
6. It is not in controversy that the petitioner/detenu was detained under the the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 by an order dated 21.04.2009 on the strength of the recommendation made by the sponsoring authority to the detaining authority that the activities of the detenu were prejudicial to the public distribution system. It is also true that one adverse case was registered against him for alleged possession of 20 bags each weighing 50 kgs.of public distribution system rice and in the ground case, the specific case of the department was that on 10.04.2009, he was found in possession of 60 bags each weighing about 50 kgs.of Public distribution system rice and it is the case came to be registered under Crime No.141 of 2009. Pursuant to which, he was remanded to judicial custody, but in the form of remand warrant, as could be seen in page 41 of the booklet and as rightly pointed out by the learned counsel for the petitioner, it is found that the detenu has to be produced before the concerned Judicial Magistrate on 24.04.2008. Thus, it is quite clear that the correct date of remand was not mentioned therein.
7. Apart from the above, the Court is able to see two vital discrepancies, (i) in so far as the quality certificate issued, as could be seen in page 52 of the booklet, it was issued by the Manager of the Department, but, on the contrary, it could be seen in page 3 of the order under challenge as if it was given by the Deputy Manager, Quality Control, Tamil Nadu Civil Supplies Corporation, Coimbatore; and (ii) even the certificate issued, as stated supra, did not contain the date of sampling. Had the authorities made a thorough scrutiny of the materials available, they should have called for a clarification; but failed to do so. Thus, it is clear that the authorities had not scrutinised the material records properly and there was non-application of mind on the part of the detaining authority while passing the order. 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 1st respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.
gl To
1. The Secretary to Government, Food, Co-operation and Consumer Protection Department, Secretariat, Chennai-9.
2. The Commissioner of Police, City Police Office, Huzur Road, Coimbatore-18.
3. The Secretary to Government, Union of India, Food and Consumer Protection Department, Ministry of Consumer Affairs Public Distribution, Government of India, New Delhi.
4. The Superintendent, Central Prison, Coimbatore
5. The Public Prosecutor, High Court, Madras