(Order of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of detention made by the second respondent dated 27.5.2009, whereby the brother-in-law of the petitioner by name Shanmugam @ Shanmugasundaram was ordered to be detained under the provisions of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980 terming him as a black marketeer.
2.The affidavit in support of the petition along with the grounds of attack are perused. Also the materials and in particular the order under challenge are perused.
3.Admittedly pursuant to the recommendations made by the sponsoring authority that two adverse cases namely (1) Pollachi Unit Civil Supplies Criminal Investigation Department Crime No.337/2007 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 and (2) Pollachi Unit CS CID Crime No.756/2008 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955, and also a ground case in Pollachi Unit CS CID Crime No.113/2009 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 alleging that the detenu was found in possession of 30 bags of PDS rice each containing 50 Kgs on 18.4.2009 were registered against the detenu and on scrutiny of the materials placed by the sponsoring authority, the detaining authority recorded its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of supplies of commodities essential to the community, and hence in order to prevent him from indulging in any such further activities, it became necessary to make such an order, and accordingly the order under challenge was made.
4.Advancing arguments on behalf of the petitioner, the learned Counsel would submit that as could be seen from the order and materials, on 18.4.2009, the detenu was found in possession of 30 bags of PDS rice each containing 50 kgs. which is a consistent case of the department; but, as could be seen from the quality certificate as found in page 83 of the booklet, the total quantity of the rice which was actually placed before the Analyst was only 1350 kgs; that as far as the rest namely 150 kgs. is concerned, no explanation was tendered at any point of time; that apart from this, while the department claimed as per the records and also the FIR that 1500 kgs. of PDS rice was actually seized under a cover of mahazar in the presence of two witnesses on 18.4.2009, what was placed before the Analyst was only 1350 kgs. and thus, there was a discrepancy in the material particulars; and that inter alia the detaining authority should have called for a clarification, but failed to do so which would affect the order.
5.Added further the learned Counsel that the said PDS rice was actually recovered as per the records on 18.4.2009, and a case came to be registered; that the Analyst's report is dated 21.4.2009, as could be seen from page 83 of the booklet; but the statement of the Analyst was recorded by the Inspector of Police, Civil Supply CID, under Sec.161 Cr.P.C., on 18.4.2009 itself and signed by him as could be seen from page 85,; that when it was actually placed before the analyst only on 20.4.2009, how the statement could be given or recorded on 18.4.2009 is a matter of surprise, and under the circumstances, a clarification should have been called for, but not done so.
6.Added further the learned Counsel as the last point that after the order of detention was passed on 27.5.2009, a post-detention representation was made to the third respondent/Central Government on 7.6.2009; but no reply has yet been received; and that non-consideration of the representation would suffice to set aside the order.
7.The Court heard the learned Counsel for the respondents and paid its anxious consideration on the submissions made.
8.As seen above, pursuant to the recommendation made by the sponsoring authority that three adverse cases and one ground case as referred to above were registered against the detenu, the detaining authority recording subjective satisfaction that the activities of the detenu were prejudicial to the public distribution system and also in order to prevent the same, an order of detention should be passed, made the order. The consistent case of the department as could be seen from the FIR, seizure mahazar and the materials was that he was found in possession of PDS rice on 18.4.2009, and the quantity was also shown as 30 bags of rice each containing 50 kgs. If to be so, when it was placed before the Analyst for the purpose of analysis, it was found to be 1350 kgs. as found in page 83 of the booklet. How this discrepancy arose was actually to be explained by the department. Equally, after the seizure mahazar was made on 18.4.2009 as stated above, it was placed before the Analyst on 20.4.2009, and the Analyst has also given a report dated 21.4.2009; but, the statement of the Analyst was found to be recorded by the Inspector of Police and signed by him on 18.4.2009, which could not have happened at all. Under the circumstances, a duty was cast upon the detaining authority to call for a clarification. It would also mean that the documents have not been properly scrutinized either, or if properly scrutinized, the authority should have called for a clarification, but not done either way, and that would affect the order.
9.As far as the third respondent/Central Government is concerned, even now no counter is filed, and apart from that, there is a specific averment in the petition and also a representation made by the Counsel that on 7.6.2009, a representation was made, and it remained unconsidered. Under the circumstances, the non-consideration of the post-detention representation has got to be taken in favour of the detenu. All the above grounds would suffice to set aside the order.
10.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.
nsv To:
1.The Secretary to Government Cooperation, Food and Consumer Protection Department Fort St. George Chennai
2.The District Magistrate and District Collector Coimbatore
3.The Secretary to Government Food and Consumer Affairs Public Distribution Government of India New Delhi
4.The Public Prosecutor High Court, Madras