THE HONOURABLE MR v. The Additional Secretary Government of India

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 16.12.2011CORAM:THE HONOURABLE MR.JUSTICE M.JAICHANDRENANDTHE HONOURABLE MR.JUSTICE S.NAGAMUTHUHabeas Corpus Petition (MD).No.918 of 2011R.Poovayee: PetitionerVs.1.The Additional Secretary Government of India, Ministry of Consumer Affairs, Food and Public Distribution (Department of Consumer Affairs) Room No.270 Krishi Bhavan, New Delhi.2.The Secretary, Government of Tamil Nadu, Co-operation, Food and consumer Protection Department Secretariat, Chennai.-93.The District Collector and District Magistrate Virudhunagar District, Virudhunagar.4.The Inspector of Police, CSCID Virudhunagar. : RespondentsPRAYER: Petition filed under Article 226 of the Constitution of Indiato issue a writ of Habeas Corpus to call for the records pertainingto the order of detention passed by the third respondent in hisproceedings Cr.M.P.No.04/2011 (Black Marketeer) dated 17.09.2011 andquash the same as illegal and produce the detenu, namely Rajendran,S/o.Shanmuga Thevar, aged about 44 years, who is confined in CentralPrison, Madurai before this Court and set him at liberty. For Petitioner: Mr.T.LeninkumarFor Respondents: Mr.T.MohanAdditional Public ProsecutorORDER [Judgment of the Court was delivered by M.JAICHANDREN,J.]This Habeas Corpus Petition has been filed to call for therecords relating to the order of the third respondent, dated17.09.2011, made in Cr.M.P.No.04/2011, and to quash the same, and toproduce the detenu, namely, S.Rajendran, son of Shanmugathevar, agedabout 44 years, confined in the Central Prison, Madurai, before this https://hcservices.ecourts.gov.in/hcservices/ 2Court and set him at liberty.2.The petitioner has stated that the second respondent had passedthe impugned detention order, dated 17.09.2011, under section 3(2)(a)read with 3(1) of the prevention of Black Marketing and Maintenanceof Supplies of Essential Commodities Act, 1980, directing thedetention of S.Rajendran, in the Central Prison, Madurai.3. Even though various grounds had been raised in the HabeasCorpus Petition filed by the petitioner, the learned counselappearing on behalf of the petitioner had placed emphasis on thegrounds, mentioned hereunder, while stating that the impugneddetention order passed by the Detaining Authority is bad in the eyeof law. He had submitted that there was clear non-application ofmind, on the part of the Detaining Authority, while passing thedetention order against the detenu. 4. The learned counsel appearing for the petitioner had referredto Paragraph No.5 of the grounds of detention, which reads as follows:"I am aware that the respondent Thiru.S.Rajendran wasremanded to judicial custody and lodged in the Central Prison,Madurai upto 23.9.11 in connection with cr.No.436/11 U/s 6(4)TNSC (RDCS) Order 1982 r/w 7(1)a(ii) of EC Act 1955. Out ofthree adverse cases against Thiru.s.Rajendran, he obtained bailin two cases and obtained anticipatorybail in one case. In allthe three adverse cases, charge sheet have been filed againsthim in the concerned court and they are pending trial. In thisstage he committed crimes in the ground case. I am also awarethat Thiru.S.Rajendrn has filed a bail petition in the groundcase in Cr.No.436/11 before the Judicial Magistrate Court-I,Virudhunagar vide Cr.M.P.5145/11 and the same is pending. In thecase registered at Virudhunagar CSCID Cr.No.378/11 u/s 6(4) TNSC(RDCS) Order 1982 r/w 7(1) a(ii) of EC Act 1955 againstTmt.Nageswari, bail was granted by the Judicial Magistrate-ICourt, Virudhunagar in Cr.M.P.4649/11, dated 16.8.11. Hence Iinfer, that it is very likely of his coming out on bail in theabove case in Cr.No.436/11, since bails are granted by the courtin such cases. If he comes out on bail, he will indulge in suchactivities in future, which will be prejudicial to themaintenance of public supplies of Essential Commodities to thepublic. Further the recourse to normal criminal law would nothave the desired effect of effectively preventing him fromindulging in such activities which are pre-judicial to themaintenance of public supplies of Essential Commodities to thepublic. On perusal of all the relevant records placed before meincluding Quality Certificate issued by the Quality Inspector,TNCSC Ltd., Virudhunagar in which it has been certified thatthe seized rice which was hoarded by the respondentThiru.S.Rajendran is Public Distribution System Rice. Hence, Iam satisfied that the said Thiru.S.Rajendran is a “BlackMarketeer” and there is a compelling necessity to detain him u/s https://hcservices.ecourts.gov.in/hcservices/ 33(1) the Prevention of Black-Marketing and Maintenance ofSupplies of Essential Commodities Act, 1980 (Act No.7 of 1980)for the purpose of preventing him from acting in any mannerprejudicial to the maintenance of public supplies of EssentialCommodities to the public in future." 5. He had further submitted that it is clear, from the aboveparagraph, that the Detaining Authority was aware that the detenu hadbeen remanded in custody, in Crime No.436 of 2011, on the file of theVirudhunagar CSCID. Thus, the statement of the Detaining Authoritythat the detention order was being passed, in order to prevent thedetenu from indulging in activities prejudicial to the maintenance ofpublic order, has been made, without any materials on record. Assuch, it is clear that it is an ipse dixit of the DetainingAuthority. It clearly shows the non-application of mind, by theDetaining Authority, while passing the detention order. 6. The learned counsel had also submitted that the DetainingAuthority has not made out a case against the detenu to show thatthere was an imminent or a real possibility of the detenu coming outon bail. In fact, the Detaining Authority had not even mentionedabout the existence of an imminent possibility or a real possibilityof the detenu being released on bail and that he would induge inactivities prejudicial to the maintenance of public order,thereafter. 7. The learned counsel had further submitted that the DetainingAuthority had not mentioned about similar cases, wherein, bail ordershad been granted, by the Courts concerned. 8. The learned counsel for the petitioner had relied on thedecision of the Supreme Court, in Rekha Vs. State of Tamilnadu (2011(5) SCC 244), wherein, it has been held that, where a detention orderis passed against a person already in custody, there should be a realpossibility of his release on bail, if he has moved a bailapplication, and if it is pending. It follows, logically, that if nobail application is pending, then there is no likelihood of theperson in custody being released on bail, and hence, the detentionorder will be illegal. However, there can be an exception to thisrule, that is, where a co-accused, whose case stands on the samefooting, had been granted bail. In such cases, the DetainingAuthority can reasonably conclude that there is a likelihood of thedetenu being released on bail, even though no bail application of hisis pending, since, most courts, normally, grant bail on this ground.However, details of such alleged similar cases must be given, withoutwhich, the bald statement of the authority cannot be believed. 9. The learned counsel had also submitted that, if a person isalready in prison, unless a co-accused in the alleged offence hadalready been released, it cannot be concluded that there is an https://hcservices.ecourts.gov.in/hcservices/ 4imminent possibility of the detenu coming out on bail, and that hewould indulge in activities prejudicial to the maintenance of publicorder. Even in such a case, the co-accused ought to have beeninvolved in the committing of the alleged offence, similar to that ofthe detenu, in all aspects. The learned counsel for the petitionerhad also submitted that there were no cogent materials availablebefore the Detaining Authority for the passing of the detentionorder, based on his subjective satisfaction.10. Per contra, the learned Additional PublicProsecutor appearing on behalf of the respondents had submitted thatthe Habeas Corpus Petition, filed on behalf of the detenu, ispremature in nature. He had submitted that the Habeas Corpus Petitionhas been filed even before the order of detention, passed by theDetaining Authority, had been considered by the Advisory Board.Therefore, it is liable to be dismissed. He had relied on thedecision of the Kerala High Court, in R.P.Goyal Vs. State, AIR1974 Kerala 85 (V 61 C 24), wherein, it has been held that theprotection envisaged by the Constitution of an Advisory Board, forlooking into the defects in the passing of an order of detention, isa substantial protection. Normally, therefore, before the order hasbecome final, on the application of mind relating to the questionof existence or otherwise of the grounds justifying the detention, bythe State Government, and the Advisory Board expressing its opinion,as to whether there is sufficient cause for such detention, it shouldnot be interfered with by the High Court, as it should not deal withthe question on insufficient material. 11. The learned counsel appearing on behalf of the respondentshad relied on the decision of the Supreme Court, in A.Geetha Vs.State of Tamilnadu (CDJ 2006 SC 702), wherein, it had been held thatthe only requirement is that the Detaining Authority should be awarethat the detenu is already in custody and that he is likely to bereleased on bail. The conclusion that the detenu may be released onbail cannot be ipse-dixit of the Detaining Authority. It would besufficient if the Detaining Authority came to the conclusion,by his subjective satisfaction, based on the relevant materials.Normally, such satisfaction is not to be interfered with. 12. In view of the submissions made by the learned counselsappearing on behalf of the petitioner, as well as the respondents,and on a perusal of the records available, and in view of thedecisions cited supra, this Court is of the considered view thatthere was no proper application of mind, by the Detaining Authority,in passing the impugned detention order against the detenu. 13. The Detaining Authority had not stated that there was animminent or a real possibility of the detenu, who is in custody,coming out on bail and indulging in activities prejudicial to themaintenance of the public order. It is also noted that the Detaining https://hcservices.ecourts.gov.in/hcservices/ 5Authority had not mentioned about the similar cases, wherein, bailorders had been granted, by the Courts concerned. 14. Even though the Detaining Authority had stated that therewas a compelling necessity to detain the detenu, in order to preventhim from indulging in activities, which would be prejudicial to themaintenance of public order, no cogent materials were available onrecord to substantiate such a claim. 15. In a number of decisions this Court had held that cogentmaterials should be available for the Detaining Authority to arriveat his subjective satisfaction for the passing of the detentionorder. The materials available on record should be sufficient for theDetaining Authority to arrive at his decision that the detenu islikely to be enlarged on bail and that, in such a case, he wouldindulge in activities, which would be prejudicial to the maintenanceof public order. Unless, such materials are available, the decisionof the Detaining Authority to detain the detenu, by passing thedetention order, would clearly be an indication of non-application ofmind on the part of the Detaining Authority, in the passing of thedetention order. 15.1) In Velumurgan @ Velu Vs. The Commissioner of Police (2005(1) CTC 577), it had been held as follows:“3…… unless there is a clear expression by the detainingauthority in the grounds of detention with reference to theimminent possibility of the detenu being released on bail byfiling bail application, the detaining authority would not chooseto pass the detention order. In order to prevent the detenu fromcommitting the acts, which would be disturbance to public orderand public health, the detaining authority shall consider thematerials and on the basis of subjective satisfaction that thereis imminent possibility of the detenu coming out on bail orlikelihood of the detenu being released on bail, the detainingauthority may pass such an order under Tamil Nadu Act 14 of 1982.When such an essential requirement, namely, the imminentpossibility of the detenu coming out on bail, is absent, it has tobe held that the order of detention is vitiated.”15.2) In Kasthuri Vs. The District Collector and D.M.,Kancheepuram (2009(1) MWN (Cr.) 418 (DB), this Court had set asidethe detention order passed against the detenu stating that theDetaining Authority had not followed the guidelines prescribed by theSupreme Court, in D.K.Basu Vs. State of W.B, (1997 SCC (Cri) 92), andthe other decisions of the Supreme Court, wherein, the followingfacts were considered as being violative of the orders of preventivedetention passed by the Detaining Authorities concerned:“(a) Non-intimation of the detention order to any of the familymembers or friends within a reasonable time(b) Delay in considering the representation made by the detenu https://hcservices.ecourts.gov.in/hcservices/ 6or any other person interested, on behalf of the detenu.(c) Non-supply of copies of material documents relied on by theDetaining Authority.(d) Furnishing illegible copies of documents, so as to preventdetenu from making effective representation as contemplated underthe Act.(e) Non-furnishing of copies translated in the language knownto the detenu for making effective representation.(f) Non-application of mind by the Detaining Authority inhaving subjective satisfaction while passing the order.”15.3) In A.Murugesan Vs. Secretary to Government (2010 (1) MLJ(Crl.) 950), it had been held that, while no bail application hadbeen filed on behalf of the detenu, before the Court concerned, itwould be too early for the detaining authority to record hissatisfaction that the detenu is likely to come out on bail or that,if he is let to remain at large, he would indulge in such activities,in future, which would be prejudicial to the maintenance of publicorder. Unless, cogent materials are available, the subjectivesatisfaction of the detaining authority would be a clear indicationof the non-application of mind by the detaining authority in thepassing of the detention order. 15.4) In Balaji Vs. State of Tamil Nadu (2010(1) CTC 820), aDivision Bench of this Court, referring to the decisions, in ChandruVs. The Commissioner of Police, Thiruchirapalli City, Trichy andanother (2007(1) TCJ 766, and Chelladurai Vs. State of Tamil Nadu,represented by Secretary to Government, Home, Prohibition and ExciseDepartment, Fort St. George, Chennai-600 009, and another , had heldthat the mere statement of the Detaining Authority, that there is areal possibility of the detenu coming out on bail, especially, whenno bail application had been filed on behalf of the detenu, shall notbe sufficient to show that the satisfaction recorded by the DetainingAuthority is based on cogent materials. 15.5) In Soosai @ Balu Vs. The Secretary to Government [2011(1)MWN (Cr.) 416 (DB)], it had been held as follows:“4…….. In the second and Third Adverse cases and also in theGround case, the detenu has not moved for any bail. Apart fromthis, the Second Adverse case is one for murder. But the Authorityhas mechanically stated in the order that there is a realpossibility of the detenu coming out on bail. The said observationis without any basis or material much less cogent material, whichthe law would require.”15.6) In Gowri Vs. The Secretary to Govt. of Tamil Nadu, Home,Prohibition and Excise Department (2011(2) CTC 145), this Court hadheld that the subjective satisfaction recorded by the DetainingAuthority was without sufficient or cogent materials, relying on thedecision of the Full Bench of this Court, in Kalaiselvi,G. Vs. The https://hcservices.ecourts.gov.in/hcservices/ 7State of Tamil Nadu (2007(5) CTC 657), wherein, it had been held asfollows:“24.From the reading of the aforesaid decisions, it is clearthat the conclusion of the Detaining Authority that there isimminent an possibility of the detenu being released on bail mustbe based on cogent materials and not on the mere ipse dixit of theDetaining Authority. As has been observed by the Supreme Court,the question as to whether there is possibility of being releasedon bail depends upon several factors, such as nature of offence,the stage of the investigation, the availability of statutory bailas envisaged under section 167(2), Proviso oof Cr.P.C. Even thoughit is not possibilt nor desirable to enumerate the circumstancesin which bail is likely to be granted, one can venture to say thatit is very rare for a Court of law to grant bail during pendencyof the investigation when there is allegation of commission ofserious offence, such as punishable under Section 302 or Section395, I.P.C. On the other hand, it is also safe to conclude that inoffences relating to prohibition laws or white collar offences,the Courts usually grant bail notwithstanding the fact that inoffences relating to prohibition laws or white collar offences,the Courts usually grant bail notwithstanding the fact thatinvestigation may be still going on. Similarly, when a charge-sheet is not filed within the statutory period contemplated,notwithstanding the seriousness of the allegation, on the expiryof the period, the accused got a right to be released on bail.25. In the present case, the conclusion of the DetainingAuthority, as already been extracted. We have searched for thematerials on record in support of such conclusion and we findnone. There was no imminent possibility of the detenu obtainingstatutory bail as hardly 60 days had elapsed from the date of thearrest and the investigating agency had more than a month forcompletion of the investigation. The alleged offence under Section302, IPC cannot be characterised as an offence of routine naturewhich would prompt any Court to grant bail even before completionof investigation. Top of it, the Bail Application had in fact beenrejected by the Sessions Judge and no other Bail Application waspending. In such a factual situation, in our considered opinion,the decision of the Supreme Court in T.V.Saravanan v. State,(2006(2) SCC 664, is squarely applicable and it can be said thatthe conclusion of the Detaining Authority is mere ipse dixit andthere is hardly any material in support of such conclusion. Onthis score also, the detention order is liable to be quashed.”15.7) In M.Rajesh Vs. The Government of Tamil Nadu [2011(1) MWN(Cr.) 279 (DB)], it had been held that, when no bail application ispending, the decision of the Detaining Authority that there was areal possibility of the detenu coming out on bail would show the non-application of mind on the part of the Detaining Authority, inpassing the detention order. https://hcservices.ecourts.gov.in/hcservices/

816. In such circumstances, this Court is constrained to hold thatthe impugned detention order, dated 17.9.2011, passed by theDetaining Authority, is devoid of merits and therefore, it is liableto be set aside. Hence, it is set aside. Accordingly, the HabeasCorpus Petition stands allowed. The detenu is directed to be set atliberty, forthwith, unless his detention is required in connectionwith any other case or cause. Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar To1.The Additional Secretary, Government of India, Ministry of Consumer affairs, Food and Public Distribution (Department of Consumer affiars) RooM No.270, Krishi Bhavan, New Delhi. 100 001.2.The Secretary, Government of Tamil Nadu, Co-operation, Food and consumer Protection Department Secretariat, Chennai.-93.The District Collector and District Magistrate Virudhunagar District, Virudhunagar.4.The Inspector of Police, CSCID Virudhunagar.5.The Superintendent, Central Prison, Madurai6.The Joint Secretary to Government, Public (Law and Order) Fort St.George, Chennai-97.The Additional Public Prosecutor Madurai Bench of Madras High Court, Madurai. ORDER MADE INHabeas Corpus Petition (MD).No.918 of 201116.12.2011RRSMA/09.01.2012/8C/8P