P. Sekaran vs The Secretary to Government, Cooperation, Food and Consumer Protection Department, The District Magistrate and District Collector and The Secretary to Government, Food and Consumer Protection Department, Government of India

M. Chockalingam, J.—Challenge is made to an order of the second respondent made in Cr.M.P. No. 04/B.M/2009 (E4) dated 28.2.2009,

whereby the son of the petitioner namely Lal @ Srilal was ordered to be detained under the provisions of the Prevention of Black Marketing and

Maintenance of Supplies of Essential Commodities Act, 1980 branding him as a black marketeer.

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.

Concededly, the order under challenge came to be passed on 28.2.2009 pursuant to the registration of three adverse cases namely (1) Pollachi

Civil Supplies Criminal Investigation Department Crime No. 778/2008 dated 21.11.2008, u/s 6(4) of TNSC (RDCS) Order 1982 read with 7(1)

(a)(ii) of Essential Commodities Act 1955 for alleged possession of 90 bags of PDS boiled rice; (2) Pollachi Civil Supplies Criminal Investigation

Department Crime No. 816/2008 dated 29.12.2008 u/s 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act

1955 for alleged possession of 2 bags of PDS rice; and (3) Pollachi Civil Supplies Criminal Investigation Department Crime No. 24/2009 dated

18.1.2009 u/s 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 for alleged possession of 119 bags of

PDS boiled rice and 55 bags of PDS raw rice and also a ground case in Pollachi Civil Supplies Criminal Investigation Department Crime No.

45/2009 u/s 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 stating that on 6.2.2009 at about 1600

hours, the Sub Inspector of Police, Civil Supplies Criminal Investigation Department, Pollachi Unit, when he was engaged in raid in detecting

hoarding and smuggling of essential commodities in Gopalapuram area, found the detenu in possession of 40 bags of PDS rice each weighing 50

kg. and it was actually smuggled with the intention to make wrongful gain by selling at Kerala State, and the PDS rice was seized under a mahazar,

and he was also arrested, and the case came to be registered in the above crime number. All materials in respect of those cases were placed

before the detaining authority along with the recommendation. On scrutiny of the materials available, the detaining authority was satisfied that the

activities of the detenu were prejudicial to the public distribution system, and hence in order to prevent him from indulging in such activities, an

order of detention has got to be made under the provisions of the Act, and accordingly made the order which is the subject matter of challenge in

this petition.

The learned Counsel while advancing arguments on behalf of the petitioner raised the following two points.

(i) The order under challenge came to be passed on 28.2.2009. A representation was made on 13.3.2009 to the Central Government, and the

same was rejected on 15.5.2009 after a delay of two months. Only an intimation was served on him and not the order of rejection. Thus the order

came to be passed not only with a delay of two months, but also the detenu was served with only the decision of rejection and not an order of

rejection. Thus the detenu was unable to understand whether the representation was rejected after giving due consideration or not, and under the

circumstances it can be well stated that the detenu was not given opportunity of understanding what was actually the order made against him.

(a) The learned Counsel in support of his contention relied on a decision of the Kerala High Court reported in Lekha Nandakumar Vs.

Government of India, .

(ii) As far as three adverse cases and one ground case are concerned, he filed bail applications in all the cases and all were pending. At that time,

even before the results of the bail applications are made known, the authority even without observing whether there was real possibility or imminent

possibility of his coming out on bail, has observed that if he comes out on bail, he would indulge in such activities, and thus it would clearly indicate

that there was non-application of mind for two reasons. Firstly, all the bail applications were pending. Even before results in those bail applications

were made, the impression that was passing in the mind of the authority that he would come out on bail was only an expression of its impression.

Secondly, the possibility of his coming out on bail was not even considered. Thus the order is infirm, and it has got to be set aside.

The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions

made.

It is not in controversy that the order of detention came to be passed. As rightly pointed out by the learned Counsel, the order came to be

passed on 28.2.2009. A representation was made to the Central Government on 13.3.2009, and it was actually disposed of on 15.5.2009 by an

order. Now it could be seen that when an order of rejection was passed, a duty is cast upon the authority to serve the order. But, what is actually

served upon him is only an intimation, and intimation would not definitely serve the purpose. The law expects service of order of rejection on the

party, and that too a speaking order containing reasons therefor, in order to enable the party to understand whether the representation was

properly considered or not. In the instant case, no such opportunity was given to the detenu thus enabling him to understand so. But, it was only an

intimation and not an order. This Court can well comment that it was a denial of a right which is available to him under the Constitution. Under the

circumstances, it can be declared that the order is infirm.

As far as the second ground is concerned, it is an admitted position that in respect of three adverse cases and ground case, bail applications are

filed, and all those bail applications were pending during the relevant time when the order under challenge came to be passed on 28.2.2009. But

the authority has stated in its order that if he comes out on bail, there is possibility of the detenu indulging in such activities in future. Now it remains

to be stated that while bail applications were pending, the observation by the authority that if he comes out on bail was only in anticipation of an

order of bail in favour of the detenu, and it is actually premature and without any basis. It was only an expression of the impression which was

passing in the mind of the authority. Added further, the authority has not even considered whether there was any possibility of the detenu coming

out on bail or imminent possibility which are not made known in the order. In such circumstances, this Court is of the considered opinion that the

order suffers from infirmity, and it is liable to be set aside.

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.