O. Pandiammal vs The District Collector and District Magistrate, State of Tamil Nadu and Additional Secretariat to Government of India, Department of Consumer Affairs

M. Chockalingam, J.—Challenge is made to the Detention Order dated 18.11.2008 made by the first respondent whereby the petitioner''s

husband one P.Otchu @ Otchathevar was detained under the Prevention of Detention Act terming him as ""Black Marketeer"" as defined u/s 3(2)

(a) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act 7/1980).

The petitioner is present and she has made her submissions.

On scrutiny of the order under challenge, it could be seen that the sponsoring authority placed his recommendations before the detaining

authority viz., the first respondent when the detenu was found in possession and transporting 10 bags of PDS Boiled Rice each containing 50 kg

and a case was registered in Crime No. 626/2008 u/s 6(4) of TNSC (RDCS) Order 1982 r/w 7(i) and (ii) of EC Act 1955 and equally following

the same, he was found transporting 20 bags of PDS rice on 10.11.2008 and a case came to be registered by the same authority in Crime No.

631/2008 under the same provisions. Taking into consideration the materials available pertaining to these cases, the detaining authority took the

view that P.Otchu @ Otchathevar has got to be termed as ""black marketeer"" and that an order of detention has got to be passed against him.

Since he was selling PDS Rice in black market at higher rate with an intention to get more gain, the act of the accused has not only defeated the

provisions of the Essential Commodities Act 1955 but also affected the interest of the common people. Hence, the detaining authority took the

view that his activities were in a manner prejudicial to the Maintenance and Supplies of Commodities Essential to the Community and violated the

provisions of Essential Commodities Act 1955 (Act 10 of 1955) and he was to be detained as Black Marketeer and made the order under

challenge.

The Court, after hearing the submissions made by the petitioner, on scrutiny of the materials, in particular, the order under challenge and on

hearing the learned Additional Public Prosecutor for the State, is of the considered opinion that the order of detention has got to be set aside on the

following grounds:

(a) Firstly, even before the order came to be passed on 18.11.2008, a pre-detention representation was made by the petitioner to the detaining

authority on 17.11.2008 itself and that was neither considered nor replied but the detaining authority has passed the order mechanically.

(b) Secondly, when there was a representation made to the detaining authority on 1.12.2008, the same was rejected after a long delay and in

particular, after the remarks were called for from the sponsoring authority, there was undue delay, which remains unexplained.

After scrutiny of the materials, the Court has to necessarily agree with the petitioner''s contentions. Insofar as the contention that the petitioner

made a pre-detention representation is concerned, paragraph 6 of the counter affidavit runs as follows:

...it is submitted that the pre-detention representation dated nil of the petitioner was thoroughly scrutinized based on the records and rejected the

same as the reasons put-forth were not accepted and served the same to the petitioner by R.P.A.D with a view to evade the prosecution, she

raised unnecessary contention. Hence this contention is also a baseless one.

The very reading of paragraph 6 of the counter affidavit referred to above would clearly indicate that the pre-detention representation was

received by the authority. It is not the case of the State that no pre-detention was made or received but the same was received. While the detaining

authority comes forward to state that the same was rejected as baseless and the reply was also served upon the petitioner by R.P.A.D., one would

naturally expect the proof of service of the same. But it is not available. Under the circumstances, it would be quite clear that there was pre-

detention representation and there is nothing to indicate that it was actually considered or rejected, which in the opinion of the Court a good ground

to set aside the order under challenge since the non-consideration of the pre-detention representation would certainly cause prejudice to the

interest of the detenu.

Insofar as the second ground of attack viz., delay is concerned, from the materials placed by the State, it is quite clear that the representation

was made on 1.12.2008 and the same was received on 3.12.2008 and that the remarks were called on 4.12.2008 but the remarks were received

from the sponsoring authority only on 15.12.2008. Thus, there was delay of 11 days. In this regard, the learned Additional Public Prosecutor

brought to the notice of the Court that there was two intervening holidays viz., Saturday and Sunday i.e. 6th and 7th December, 2008 and thus,

there were delay of 9 days excepting two holidays. The State has no explanation to offer in this regard and thus, the inordinate delay of 9 days in

the considered opinion of the Court would be indicative of the fact that the detaining authority has not acted with diligent care what is expected of.

Under the circumstances, it would be another ground which has got to be accepted by the Court.

In view of both the grounds as stated above, the order under challenge has got to be set aside and accordingly, it is set aside. The detenu is

directed to be set at liberty forthwith unless he is required in connection with any other case. Accordingly, the Habeas Corpus Petition is allowed.