S.Vijaya Lakshmi v. Government of India, Ministry of Consumer Affairs, Food and Public Distribution, (Department of Consumer Affairs)

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 15.12.2011 CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENANDTHE HONOURABLE MR.JUSTICE S.NAGAMUTHUH.C.P(MD) No.928 of 2011S.Vijaya Lakshmi.. Petitioner.Vs.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-110 001.2.The Secretary to Government, Co-operation Food and Consumer Protection Department, Secretariat, Chennai-600 009.3.The District Collector and District Magistrate, Thanjavur District.4.The Inspector of Police, Civil Supplies Criminal Investigation Department, Thanjavur Unit, Thanjavur District. .. Respondents.Prayer: Petition filed under Article 226 of the Constitution of India toissue Writ of Habeas Corpus, calling for the records in pursuant to theproceedings of the third respondent in P.D.No.26/2011/C1 dated 14.9.2011and quash the same and consequently direct the respondents to produce thedetenu, Silambarasan, S/o.Amirtharaj aged about 24 years who is nowdetained in Central Prison, Tiruchirappalli, before this Hon'ble Court andset him at liberty. For Petitioner: Mr.M.Subash BabuFor Respondents: Mr.C.Ramesh, Additional Public ProsecutorORDER(The Order of the Court was made by M.JAICHANDREN,J)This Habeas Corpus Petition has been filed to call for the recordsrelating to the order of the third respondent, dated 14.09.2011, made inP.D.No.26/2011/C1, and quash the same, and to produce the detenu, namely,Silambarasan, son of Amirtharaj, aged about 24 years, confined in theCentral Prison, Tiruchirapalli, before this Court and to set him at liberty.2. The petitioner has stated that the second respondent had passedthe impugned detention order, dated 14.09.2011, under sub-section (3)(2)(a) https://hcservices.ecourts.gov.in/hcservices/ 2read with 3(1) of the prevention of Black Marketing and Maintenance ofSupplies of Essential Commodities Act, 1980, directing the detention ofSilambarasan, in the Central Prison, Tiruchirapalli, terming him as a'Black Marketeer'.3. Even though various grounds had been raised in the Habeas CorpusPetition filed by the petitioner, the learned counsel appearing on behalfof the petitioner had placed emphasis on the grounds, mentioned hereunder,while stating that the impugned detention order passed by the DetainingAuthority is bad in the eye of law. He had submitted that there was clearnon-application of mind, on the part of the Detaining Authority, whilepassing the detention order against the detenu.4. The learned counsel appearing for the petitioner had referred toParagraph No.7 of the grounds of detention, which reads as follows:"7. I am aware that Thiru.Silambarasan was producedbefore the Judicial Magistrate-II, Thanjavur in Civil SuppliesCriminal Investigation Department, Thanjavur Unit Crime Number580/2011 u/s 294(b), 353 and 307 of I.P.C and 6(4) of TNSC (RDCS)Order 1982 r/w 7(1)(a)(ii) of Essential Commodities Act, 1955 andwas remanded to judicial custody and was lodged at Sub-Jail,Papanasam as remand Prisoner till 20.9.2011. He has filed a bailapplication for Civil Supplies Criminal Investigation Department,Thanjavur Unit Crime Number 580/2011 before the Court of SessionsThanjavur in Cr.M.P.No.2590 of 2011 and the same is pending. In asimilar case registered at Civil Suppiles Criminal InvestigationDepartment, Thiruvallur Unit Crime Number 664/2011 under Section294(b), 353 and 307 of I.P.C and 6(4) of (RDCS) Order 1982 r/w 7(1)(a)(ii) of Essential Commodities Act, 1955, and 353, 323 r/w307 of IPC. Bail was granted by the Principal Sessions Court,Thiruvallur in Cr.M.P.No.1763/2011. Hence, I infer that it isvery likely of his Silambarasan coming out on bail in the aboveCrime Number case. Since bails are granted by the Courts in suchcases. If he comes out on bail, he will indulge in such furtheractivities, which will be prejudicial to the maintenance ofsupplies of commodities essential to the community. Further, therecourse to normal criminal law will not have the desired effectof effectively preventing him from indulging in such activitieswhich are prejudicial to the maintenance of supplies ofcommodities essential to the community. On the materials placedbefore me, I am fully satisfied that the said Thiru.silambarasanis a Black Marketeer and there is a compelling necessty to detainhim in order to prevent him from indulging in such furtheractivities in future, which are prejudicial to the Maintenance ofSupplies of Essential to the community under the provisions ofthe Prevention of Black Marketing and Maintenance of suppies ofEssential Commodities Act, 1980."5. He had further submitted that, it is clear, from the aboveparagraph, that the Detaining Authority was aware that the detenu had beenremanded in custody, in Crime No.580 of 2011, on the file of the CivilSupplies Criminal Investigation Department, Thanjavur Unit. Thus, thestatement of the Detaining Authority that the detention order was beingpassed, in order to prevent the detenu from indulging in activities https://hcservices.ecourts.gov.in/hcservices/ 3prejudicial to the maintenance of public order, has been made, without anymaterials on record. As such, it is clear that it is an ipse dixit of theDetaining Authority. 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 that there wasan imminent or a real possibility of the detenu coming out on bail. Infact, the Detaining Authority had not even mentioned about the existence ofan imminent possibility or a real possibility of the detenu being releasedon bail and that he would indulge in activities prejudicial to themaintenance of public order, thereafter. 7. The learned counsel had further submitted that the DetainingAuthority had not mentioned about similar cases, wherein, bail orders hadbeen granted, by the Courts concerned. 8. The learned counsel for the petitioner had relied on the decisionof the Supreme Court, in Rekha Vs. State of Tamilnadu (2011 (5) SCC 244),wherein, it has been held that, where a detention order is passed against aperson already in custody, there should be a real possibility of hisrelease on bail, if he has moved a bail application, and if it is pending.It follows, logically, that if no bail application is pending, then thereis no likelihood of the person in custody being released on bail, andhence, the detention order will be illegal. However, there can be anexception to this rule, that is, where a co-accused, whose case stands onthe same footing, had been granted bail. In such cases, the DetainingAuthority can reasonably conclude that there is a likelihood of the detenubeing released on bail, even though no bail application of his is pending,since, most courts, normally, grant bail on this ground. However, detailsof such alleged similar cases must be given, without which, the baldstatement of the authority cannot be believed. 9. The learned counsel had also submitted that, if a person is alreadyin prison, unless a co-accused in the alleged offence had already beenreleased, it cannot be concluded that there is an imminent possibility ofthe detenu coming out on bail, and that he would indulge in activitiesprejudicial to the maintenance of public order. Even in such a case, theco-accused ought to have been involved in the committing of the allegedoffence, similar to that of the detenu, in all aspects. The learned counselfor the petitioner had also submitted that there were no cogent materialsavailable before the Detaining Authority for the passing of the detentionorder, based on his subjective satisfaction.10. Per contra, the learned Additional Public Prosecutor appearingon behalf of the respondents had submitted that the Habeas Corpus Petition,filed on behalf of the detenu, is premature in nature. He had submittedthat the Habeas Corpus Petition has been filed even before the order ofdetention, passed by the Detaining Authority, had been considered by theAdvisory Board. Therefore, it is liable to be dismissed. He had relied onthe decision of the Kerala High Court, in R.P.Goyal Vs. State, AIR 1974 Kerala 85 (V 61 C 24), wherein, it has been held that the protection envisaged by the Constitution of an Advisory Board, for looking into thedefects in the passing of an order of detention, is a substantialprotection. Normally, therefore, before the order has become final, https://hcservices.ecourts.gov.in/hcservices/ 4on the application of mind relating to the question of existence orotherwise of the grounds justifying the detention, by the State Government,and the Advisory Board expressing its opinion, as to whether there issufficient cause for such detention, it should not be interfered with bythe High Court, as it should not deal with the question on insufficientmaterial. 11. The learned counsel appearing on behalf of the respondents hadrelied on the decision of the Supreme Court, in A.Geetha Vs. State ofTamilnadu (CDJ 2006 SC 702), wherein, it had been held that the onlyrequirement is that the Detaining Authority should be aware that the detenuis already in custody and that he is likely to be released on bail. Theconclusion that the detenu may be released on bail cannot be ipse-dixit ofthe Detaining Authority. It would be sufficient if the DetainingAuthority came to the conclusion, by his subjective satisfaction, based onthe relevant materials. Normally, such satisfaction is not to be interferedwith. 12. In view of the submissions made by the learned counselsappearing on behalf of the petitioner, as well as the respondents, and on aperusal of the records available, and in view of the decisions cited supra,this Court is of the considered view that there was no proper applicationof mind, by the Detaining Authority, in passing the impugned detentionorder 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 outon bail and indulging in activities prejudicial to the maintenance of thepublic order. It is also noted that the Detaining Authority had notmentioned about the similar cases, wherein, bail orders had been granted,by the Courts concerned. 14. Even though the Detaining Authority had stated that there was acompelling necessity to detain the detenu, in order to prevent him fromindulging in activities, which would be prejudicial to the maintenance ofpublic order, no cogent materials were available on record to substantiatesuch a claim. 15. In a number of decisions this Court had held that cogent materialsshould be available for the Detaining Authority to arrive at his subjectivesatisfaction for the passing of the detention order. The materialsavailable on record should be sufficient for the Detaining Authority toarrive at his decision that the detenu is likely to be enlarged on bail andthat, in such a case, he would indulge in activities, which would beprejudicial to the maintenance of public order. Unless, such materials areavailable, the decision of the Detaining Authority to detain the detenu, bypassing the detention order, would clearly be an indication of non-application of mind on the part of the Detaining Authority, in the passingof the detention 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 detaining authority in https://hcservices.ecourts.gov.in/hcservices/ 5the grounds of detention with reference to the imminent possibility ofthe detenu being released on bail by filing bail application, thedetaining authority would not choose to pass the detention order. Inorder to prevent the detenu from committing the acts, which would bedisturbance to public order and public health, the detaining authorityshall consider the materials and on the basis of subjective satisfactionthat there is imminent possibility of the detenu coming out on bail orlikelihood of the detenu being released on bail, the detaining authoritymay pass such an order under Tamil Nadu Act 14 of 1982. When such anessential requirement, namely, the imminent possibility of the detenucoming out on bail, is absent, it has to be held that the order ofdetention is vitiated.”15.2) In Kasthuri Vs. The District Collector and D.M., Kancheepuram(2009(1) MWN (Cr.) 418 (DB), this Court had set aside the detention orderpassed against the detenu stating that the Detaining Authority had notfollowed the guidelines prescribed by the Supreme Court, in D.K.Basu Vs.State of W.B, (1997 SCC (Cri) 92), and the other decisions of the SupremeCourt, wherein, the following facts were considered as being violative ofthe orders of preventive detention passed by the Detaining Authoritiesconcerned:“(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 or anyother 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 prevent detenufrom making effective representation as contemplated under the Act.(e) Non-furnishing of copies translated in the language known to thedetenu for making effective representation.(f) Non-application of mind by the Detaining Authority in havingsubjective 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 had been filed onbehalf of the detenu, before the Court concerned, it would be too early forthe detaining authority to record his satisfaction that the detenu islikely to come out on bail or that, if he is let to remain at large, hewould indulge in such activities, in future, which would be prejudicial tothe maintenance of public order. Unless, cogent materials are available,the subjective satisfaction of the detaining authority would be a clearindication of 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), a DivisionBench of this Court, referring to the decisions, in Chandru Vs. TheCommissioner of Police, Thiruchirapalli City, Trichy and another (2007(1)TCJ 766, and Chelladurai Vs. State of Tamil Nadu, represented by Secretaryto Government, Home, Prohibition and Excise Department, Fort St. George,Chennai-600 009, and another , had held that the mere statement of theDetaining Authority, that there is a real possibility of the detenu comingout on bail, especially, when no bail application had been filed on behalfof the detenu, shall not be sufficient to show that the satisfactionrecorded by the Detaining Authority is based on cogent materials. https://hcservices.ecourts.gov.in/hcservices/

615.5) 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 from this, theSecond Adverse case is one for murder. But the Authority hasmechanically stated in the order that there is a real possibility of thedetenu coming out on bail. The said observation is without any basis ormaterial much less cogent material, which the 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 had heldthat the subjective satisfaction recorded by the Detaining Authority waswithout sufficient or cogent materials, relying on the decision of the FullBench of this Court, in Kalaiselvi,G. Vs. The State of Tamil Nadu (2007(5)CTC 657), wherein, it had been held as follows:“24.From the reading of the aforesaid decisions, it is clear that theconclusion of the Detaining Authority that there is imminent anpossibility of the detenu being released on bail must be based on cogentmaterials and not on the mere ipse dixit of the Detaining Authority. Ashas been observed by the Supreme Court, the question as to whether thereis possibility of being released on bail depends upon several factors,such as nature of offence, the stage of the investigation, theavailability of statutory bail as envisaged under section 167(2),Proviso oof Cr.P.C. Even though it is not possibilt nor desirable toenumerate the circumstances in which bail is likely to be granted, onecan venture to say that it is very rare for a Court of law to grant bailduring pendency of the investigation when there is allegation ofcommission of serious offence, such as punishable under Section 302 orSection 395, I.P.C. On the other hand, it is also safe to conclude thatin offences relating to prohibition laws or white collar offences, theCourts usually grant bail notwithstanding the fact that in offencesrelating to prohibition laws or white collar offences, the Courtsusually grant bail notwithstanding the fact that investigation may bestill going on. Similarly, when a charge-sheet is not filed within thestatutory period contemplated, notwithstanding the seriousness of theallegation, on the expiry of the period, the accused got a right to bereleased on bail.25. In the present case, the conclusion of the Detaining Authority,as already been extracted. We have searched for the materials on recordin support of such conclusion and we find none. There was no imminentpossibility of the detenu obtaining statutory bail as hardly 60 days hadelapsed from the date of the arrest and the investigating agency hadmore than a month for completion of the investigation. The allegedoffence under Section 302, IPC cannot be characterised as an offence ofroutine nature which would prompt any Court to grant bail even beforecompletion of investigation. Top of it, the Bail Application had in factbeen rejected by the Sessions Judge and no other Bail Application waspending. In such a factual situation, in our considered opinion, thedecision of the Supreme Court in T.V.Saravanan v. State, (2006(2) SCC664, is squarely applicable and it can be said that the conclusion ofthe Detaining Authority is mere ipse dixit and there is hardly anymaterial in support of such conclusion. On this score also, thedetention order is liable to be quashed.” https://hcservices.ecourts.gov.in/hcservices/

715.7) In M.Rajesh Vs. The Government of Tamil Nadu [2011(1) MWN (Cr.)279 (DB)], it had been held that, when no bail application is pending, thedecision of the Detaining Authority that there was a real possibility ofthe detenu coming out on bail would show the non-application of mind on thepart of the Detaining Authority, in passing the detention order.16. In such circumstances, this Court is constrained to hold thatthe impugned detention order, dated 14.9.2011, passed by the DetainingAuthority, is devoid of merits and therefore, it is liable to be set aside.Hence, it is set aside. Accordingly, the Habeas Corpus Petition standsallowed. The detenu is directed to be set at liberty, forthwith, unless hisdetention is required in connection with any other case or cause. SdASST REGISTRAR ( AS )/TRUE COPY/SUB ASST REGISTRAR gcgTo1.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-110 001.2.The Secretary to Government, Co-operation Food and Consumer Protection Department,Secretariat, Chennai-600 009.3.The District Collector and District Magistrate, Thanjavur District.4.The Inspector of Police, Civil Supplies Criminal Investigation Department, Thanjavur Unit, Thanjavur District.5.The Superintendent of Central Prison, Tiruchy.6.The Addl.Public Prosecutor, Madurai Bench of Madras High Court, Madurai.1CC TO MR. M. SUBASH BABU, ADVOCATE, SR: 43873:DM::2012::JANUARY:02:: H.C.P.(MD).No.928 of 2011 15.12.2011 7P:8C::