Mathina Begum v. The Secretary to Government,, Cooperatiion, Food and Consumer Protection Dept., Secretariat & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16.07.2009CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMANDTHE HON'BLE MR.JUSTICE C.S.KARNANHCP.NO.741 OF 2009Mathina Begum ..Petitioner/Wife of the detenueVs.1. The Secretary to Government,, Cooperatiion, Food and Consumer Protection Dept., Secretariat, Chennai – 600 009.2. The District Magistrate and District Collector, Coimbatore. 3. The Secretary to Government, Food and Consumer Protection Department, Government of India, New Delhi. ..Respondents Petition filed under Article 226 of the Constitution of Indiafor the issuance of a writ of Habeas Corpus calling for the entirerecords in connection with the order of detention passed by thesecond respondent dated 28.3.2009 in Cr.M.P.No.6/B.M./2009 (E4)against the petitioner's husband Abdul Rahuman @ Rahim son ofMaitheen aged about 36 years and confined at Central Prison,Coimbatore and set aside the same and direct the respondents toproduce the detenu before this Court and set him at liberty.For Petitioner : Mr.V.ParthibanFor Respondents 1 & 2: Mr.N.R.Elango Additional Public ProsecutorFor Respondent 3 : Mr.M.Devendran,SPCCG. https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by M.CHOCKALINGAM,J)Challenge is made to an order of detention made on 28.3.2009 bythe second respondent whereby the petitioner's husband Abdul Rahuman@ Rahim son of Maitheen was ordered to be detained under theprovisions of Black Marketing and Maintenance of Supplies ofEssential Commodities Act, 1980 along with the Rules thereinbranding him as a Black Marketeer.2. The affidavit in support of the application along with thegrounds of attack and the entire materials placed along with theorder under challenge are perused. The Court heard the learnedcounsel appearing on either side.3. Admittedly, pursuant to the recommendations made by theSponsoring Authority that the said detenu was involved in 5 adversecases (1) Registered by Pollachi Civil Supplies CriminalInvestigation Department in Crime No.459 of 2006 dated 22.9.2006under section 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) ofthe Essential Commodities Act 1955 for smuggling 54 bags of boiledrice and 11 bags of raw rice meant for Public DistributionSystem weighing 50 kgs each to Kerala State (2) Registered byPollachi East Police Station in Crime No.531/2007 dated 14.8.2007under section 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) ofthe Essential Commodities Act 1955 for smuggling 117 bags of PublicDistribution System boiled rice weighing 50 kgs each to KeralaState; (3) Registered by Pollachi Civil Supplies CriminalInvestigation Department in Crime No.743 of 2008 dated 18.10.2008under section 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) ofthe Essential Commodities Act 1955 for smuggling 4 bags of PublicDistribution System boiled rice weighing 50 kgs each to KeralaState; (4) Registered by Pollachi Civil Supplies CriminalInvestigation Department in Crime No.778 of 2008 dated 21.11.2008under section 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) ofthe Essential Commodities Act 1955 for smuggling 90 bags of PublicDistribution System boiled rice weighing 50 kgs each to KeralaState and (5) Registered by Pollachi Civil Supplies CriminalInvestigation Department in Crime No.47 of 2009 dated 10.2.2009 undersection 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of theEssential Commodities Act 1955 for smuggling 30 bags of PublicDistribution System weighing 50 kgs each to Kerala State and also aground case in Crime No.81/2009 registered by the Civil Supplies CID,Pollachi, on 20.3.2009 that he was found in possession of 40 bagseach containing 50 kgs of PDS rice. The detaining authority, afterlooking into the materials available and after recording itssatisfaction that the activities of the detenu were prejudicial tothe maintainability of the Public Distribution System and in order toprevent him from indulging in such activities in future, it became https://hcservices.ecourts.gov.in/hcservices/ necessary to make the order of detention, made the orderaccordingly, which is the subject matter of challenge before thisCourt.4. Advancing the argument on behalf of the petitioner, thelearned counsel would submit that the detenu was actually remanded tojudicial custody on the last adverse case and on the ground case on20.3.2009 and it is also the fact which could be seen from theavailable detention order that no bail application was actuallyfiled. Under such circumstances, it is noted in the order that thedetaining authority has pointed out that there was real possibilityof the detenu coming out on bail by filing a bail application beforethe Court which was not only without cogent materials but alsowithout applying its mind and the observations made by the detainingauthority was pre-mature while no bail application was pending inany one of the cases and making such observation and passing such anorder, cannot be sustained and hence, it has got to be set aside. 5. Added further, learned counsel that in the remand report, itis stated that the detenu was history sheeted rowdy and this factshould have been condemned when all the materials placed before thedetaining authority, this point would weigh the mind of the authorityin one way or the other. When the representation was made by thedetenu calling for particulars to be furnished by the SponsoringAuthority, they were not furnished to him at all. Under suchcircumstances, since the relied on documents were not furnished itwould also affect the order and hence, the order under challenge hasgot to be set aside.6. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.7. As pointed out above, pursuant to the recommendations madethat the detenu has involved in 5 adverse cases and one ground case,the sponsoring authority placed all materials to the detainingauthority which impelled the detaining authority recording itssubjective satisfaction that the activities of the detenu wereprejudicial to the maintenance of Public Distribution System and inorder to prevent him from indulging from such activities in futuresuch an order has become necessary and hence, passed an order ofdetention. As rightly pointed out by the learned counsel for thepetitioner, in paragraph 5 of the detention order it is read asfollows." I am aware that he has not moved any bail applicationbefore any court. There is a real possibility of his comingout on bail by filing a bail application before the Court. " https://hcservices.ecourts.gov.in/hcservices/

8. From a reading of this paragraph of the order, it wouldindicate that this observation that, there is a real possibility ofthe detenu coming out on bail, cannot be recorded without materials,that too, without cogent materials available in the hands of thedetaining authority. No cogent materials were actually placed beforethe detaining authority. In the instant case, the learned counselappearing for the State would submit that when bail applications werefiled, ordinarily, in a normal case, bail could be granted, that too,after lapse of time. Such observation made by the authority cannot besaid to be incorrect. Under such circumstances, recording so cannotbe found to be defective. 9. In a given case subjective satisfaction was recorded evenwithout any material whatsoever. The Honourable Apex Court in adecision reported in 2006 AIR SCW 4648 (Senthamilselvi v. State ofTamil Nadu) wherein at paragraph 10, it is held as follows:"It was also submitted that since the detenu hadnot filed any bail application, the detainingauthority could not have inferred that there waspossibility of his being released on bail. Strongreliance is placed on several decisions of this Court.It has to be noted that whether prayer for bail wouldbe accepted depends on circumstances of each case andno hard and fast rule can be applied. The onlyrequirement is that the detaining authority should beaware that the detenu is already in custody and islikely to be released on bail. The conclusion that thedetenu may be released on bail cannot be ipse-dixit ofthe detaining authority. On the basis of materialsbefore him, the detaining authority came to theconclusion that there is likelihood of detenu beingreleased on bail. That is his subjective satisfactionbased on materials. Normally, such satisfaction is notto be inferred with. On the facts of the case, thedetaining authority has indicated as to why he was ofthe opinion that there is likelihood of detenu beingreleased on bail. It has been clearly stated that insimilar cases orders granting bail are passed byvarious courts. Appellant has not disputed correctnessof this statement. Strong reliance was placed bylearned counsel for the appellant on Rajesh Gulati v.Govt. of NCT of Delhi and Another ((2002) 7 SCC 129).The factual scenario in that case was entirelydifferent. In fact, five bail applications filed hadbeen already rejected. In that background this Courtobserved that it was not "normal" case. The High Courtwas justified in rejecting the stand of theappellant." https://hcservices.ecourts.gov.in/hcservices/

10. From a perusal of the above decision, it is quite clear thatbefore subjective satisfaction, there must be materials and suchsatisfaction is to be inferred with. In the instant case, it was doneby the detaining authority without materials and it cannot beinferred that such inference cannot be a basis for making suchobservation or recording such satisfaction. Under such circumstances,that part of the order is infirm and defective.11. So far as the second ground is concerned, the Court isunable to agree with the learned counsel for the petitioner. It wasmentioned in the remand report that the detenu was history sheetedrowdy. The contention putforth by the learned counsel for thepetitioner is that if it is mentioned so in the remand report thosematerials should have been placed before the detaining authority andthe detaining authority, in turn, should have considered the same inone way or the other, cannot be countenanced. A perusal of theorder under challenge did not reflect any material which wasplaced before the authorities impelled the authorities to make suchstatement. Therefore, the second ground raised by the learned counselfor the petitioner do not carry any merit whatsoever and the same isliable to be rejected, accordingly rejected. 12. The Court, on being satisfied with the first ground raisedby the learned counsel for the petitioner, is of the opinion that itwould be suffice to set aside the order of detention. Accordingly,this habeas corpus petition is allowed setting aside the order of thesecond respondent. The detenu is directed to be set at libertyforthwith unless his presence is required in connection with anyother case.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarVsiTo1. THE SECRETARY TO GOVERNMENT CO-OPERATION FOOD AND CONSUMER PROTECTION DEPARTMENT, SECRETARIAT, CHENNAI 92. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, COIMBATORE. https://hcservices.ecourts.gov.in/hcservices/

3. THE SECRETARY TO GOVERNMENT FOOD AND CONSUMER PROTECTION DEPARTMENT GOVERNMENT OF INDIA NEW DELHI.4. THE SUPERINTENDENT CENTRAL PRISON, COIMBATORE.5. THE JOINT SECRETARY TO GOVERNMENT PUBLIC (LAW & ORDER) FORT ST. GEORGE, CHENNAI-9.6. THE PUBLIC PROSECUTOR HIGH COURT, MADRAS.+ 1 c.c. to Mr. M. Devendran, Advocate. S.R.No.32394.+ 1 c.c. to Mr. V. Parthiban, Advocate. S.R.No.31712.H.C.P.No.741 of 2009BKY (CO)GSK 29.07.2009.