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Judgment
M. Chockalingam, J.—This Writ Application challenges an Order of Detention of the third respondent made in C.M.P. No. 02/2010(CS) dated 8.3.2010 whereby the husband of the petitioner, by name, Kannan, was ordered to be detained under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act No. 7 of 1980) branding him as a "Black Marketeer".
The Court heard the learned Counsel appearing for the petitioner and looked into all the materials available, in particular, the order under challenge.
The detenu was involved in five adverse cases as follows:
Sl Police Station Section of law No Cr. No. & Date 1 Civil Supplies CID Unit, Under Section6(4) of TNSC Madurai. (RDCS) Order 1982 r/w 7(i)(a)(ii) of Cr. No. 854/08 dt. 04.10.200 E.C. Act 1955 2 Civil Supplies CID Unit, u/s 6(4) of TNSC Madurai. (RDCS) Order 1982 r/w 7(i)(a)(ii) of Cr. No. 112/09 dt. 05.05.2009 E.C. Act 1955 3 Virudhunagar Civil Supplies u/s 6(4) of TNSC CID Unit, in-charge Madurai (RDCS) Order 1982 r/w 7(i)(a)(ii) of Unit E.C. Act 1955 Crime No. 10/10dt.10.01.2010 4 Virudhunagar Civil Supplies u/s 6(4) of TNSC CID Unit, in-charge Madurai (RDCS) Order 1982 r/w 7(i)(a)(ii) of Unit E.C.Act 1955 Crime No. 21/10dt.20.01.2010 5 Virudhunagar Civil Supplies u/s 6(4) of TNSC CID Unit, in-charge Madurai (RDCS) Order 1982 r/w 7(i)(a)(ii) of Unit E.C.Act 1955 Crime No. 68/10dt.25.02.2010
Apart from that, the detenu was involved in one ground case case registered by Madurai Civil Supplies CID, in Crime No. 72/2010 u/s 6(4) of TNSC (RDCS) Order 1982 r/w 7(i)(a)(ii) of E.C. Act 1955. It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the detenu was involved five adverse cases referred to above and also in one ground case in Crime No. 72/2010 u/s 6(4) of TNSC (RDCS) Order 1982 r/w 7(i)(a)(ii) of E.C. Act 1955 for the occurrence that took place on 01.3.2010 when the detenu was found in possession of 37 bags of rice meant for Public Distribution System, after looking into the materials available, the detaining authority recorded its subjective satisfaction that the activities of the detenu is prejudicial to the maintenance of supplies of commodities essential to the communities and accordingly, made the order of detention, which is the subject matter of challenge before this Court.
Advancing the arguments on behalf of the petitioner, the learned Counsel for the petitioner urged the following three grounds:
(i) Insofar as the five cases referred to above and also the ground case, no bail application was ever made by the detenu before the Court of Criminal law but the detaining authority even after observing the said fact has pointed out that there was a real possibility of the detenu coming out on bail and the same was without any reason or any basis.
(ii) The learned Counsel would further add that the representation was given on 10.3.2010 and the same was received on 17.3.2010 and, though the remarks were called on 18.3.2010, the same was received on 29.3.2010 and thus, there was inordinate delay and the same remains unexplained and the same has also caused prejudice to the interests of the detenu.
(iii) Added further the learned Counsel that insofar as the ground case in Crime No. 72/2010 u/s 6(4) of TNSC (RDCS) Order 1982 r/w 7(i)(a)(ii) of E.C. Act 1955 registered by Madurai Civil Supplies Criminal Investigation Department, the detenu was arrested at 18.00 hours on 1.3.2010 and the arrest card, which was prepared earlier contained the crime number. Hence, under the circumstances, an explanation should have been called for by the detaining authority from the sponsoring authority but failed to do so. All would clearly indicate non-application of mind on the part of the detaining authority, which according to the learned Counsel was sufficient to set aside the order of detention.
The Court heard the learned Additional Public Prosecutor for the State.
According to the learned Additional Public Prosecutor, the detenu was a black marketeer and he was indulging in such activities and he was originally involved in five adverse cases referred to above and in one ground case in Crime No. 72/2010 when he was found in possession of 37 bags of rice meant for Public Distribution System. It is true that the case was registered in the police station at 20.45 hours in Crime No. 72/2010 and it is also true that the crime number is mentioned in the arrest card. The learned Additional Public Prosecutor would submit that at the time of arrest, a phone call was made to the respondent police station and crime number was actually received from the police station and the same was incorporated in the arrest card. Hence, it cannot be found to be an infirmity. Added further the learned Additional Public Prosecutor that in the instant case, the detaining authority has considered all the circumstances before branding the detenu as a "black marketeer" and hence, the petition has got to be dismissed.
The Court made a thorough scrutiny of the materials available and considered the submissions. Admittedly, on the recommendation made by the sponsoring authority, an order of detention came to be passed by the detaining authority referred to above. It is also not in controversy that the detenu was involved in five adverse cases and in one ground case in Crime No. 72/2010 u/s 6(4) of TNSC (RDCS) Order 1982 r/w 7(i)(a)(ii) of E.C. Act 1955 registered by Madurai Civil Supplies Criminal Investigation Department and the F.I.R came into existence at 20.45 hours on 1.3.2010. It is also admitted by the State that the detenu was arrested on the same day at 18.00 hours, thus 2 hours prior to the registering of the case. If really, the arrest memo came into existence as put-forth by the department, the crime number could not have been mentioned therein but the explanation now tendered before the Court is that there was a phone call from the authority who arrested the detenu and he got the crime number from the police station and he also incorporated the same in the arrest memo. This explanation cannot be countenanced at this stage. When such discrepancy was noticed by the detaining authority, the detaining authority is duty bound to call for an explanation and satisfy him self before passing the order. It is not the contention what is expected at this stage but at the stage, before the order of detention came to be passed. Hence, now the contention put-forth by the State cannot be accepted.
Apart from this, a reading of the order would clearly indicate that the detaining authority was aware that no bail application was made in the fifth adverse case and also in the ground case but the detaining authority has observed that there was a real possibility of the detenu coming out on bail. It would be an indicative of the fact that such an observation was made without any material muchless cogent material.
Apart from the above two grounds, when there was a representation made and the remarks were called for on 18.3.2010, remarks were received on 29.3.2010, out of an interval of 11 days, 20.3.2010, 21.3.2010, 27.3.2010 and 28.3.2010 i.e. four days are found to be holidays and there was 7 days delay, which remains unexplained and it should have caused prejudice to the interests of the detenu.
On all the above three grounds, the impugned order of detention 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 connected with any other case. The Habeas Corpus Petition is allowed.