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Judgment
M. Duraiswamy, J.—In this writ petition filed under Article 226 of the Constitution, challenge is made to the order of the 1st respondent, dated 28.02.2010, whereby one Manoharan, husband of the petitioner, was ordered to be detained under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, branding him as a "Black Marketer".
The affidavit and the materials filed in support of the petition, in particular the order under challenge, are looked into. The Court heard the learned Counsel for the petitioner.
It is not in controversy that pursuant to the recommendations made by the Sponsoring Authority that the said Manoharan was involved in two adverse cases, as detailed below,
Sl. No. Police Station & Crime Number Provisions of law 1. Uthamapalayam Civil Supplies Criminal u/s 6(4) of TNSC (RDCS) Order Investigation Dept. Cr. No. 599/2008 1982 r/w Section 7(1)(a)(ii) of EC Act, 1955 2. Uthamapalayam Civil Supplies Criminal u/s 6(4) of TNSC (RDCS) Order Investigation Dept. Cr. No. 230/2009 1982 r/w Section 7(1)(a)(ii) of EC Act, 1955 and also in the ground case Crime No. 65/2010, registered u/s 6(4) of TNSC (RDCS) Order 1982 r/w Section 7(1)(a)(ii) of EC Act, 1955 on the file of Uthamapalayam Civil Supplies Criminal Investigation Department that he was found in possession of 40 bags of Public Distribution System Rice, each containing 50 kgs., on 20.02.2010, in which he was arrested on the very day and remanded to judicial custody, on scrutiny of the materials placed before him, the detaining authority, the 1st respondent herein, after recording his subjective satisfaction that the activities of the alleged detenu are prejudicial to the maintenance of public distribution system made the order under challenge.
At the time of advancing arguments on behalf of the petitioner, the learned Counsel Mr. K. Jegannathan, in his sincere attempt to assail the impugned order of detention, urged the following grounds.
(a)Firstly, there was a representation made on behalf of the detenu on 23.03.2010 and though the same was received by the Government on 25.03.2010 and remarks were called for from the detaining authority on the next day, such remarks were received by the Government only on 07.04.2010, after a long delay of seven 12 days and the same remains unexplained and it has caused prejudice to the interest of the detenu.
(b)Added further the learned Counsel, the detaining authority could not have arrived at the subjective satisfaction for detaining the detenu under preventive detention. Though, according to the learned Counsel, it is stated in the grounds of detention that the detenu has moved bail application and the same was pending before the Judicial Magistrate, Uthamapalayam, the detaining authority has nowhere stated that there was any likelihood of the detenu coming out on bail and thus so long as the authority could not take a decision as to the likelihood or possibility of the detenu coming out bail, the authority could not come to a proper conclusion that there was a compelling necessity to detain the detenu under the preventive detention.
(c)Added further the learned Counsel, while the bail application filed in C.A. No. 363/2010 was pending before the court of criminal law on the date when the detention order came to be passed, the booklet contained the order of dismissal, dated 01.03.2010, dismissing the bail application and this would indicate that all the materials should have been placed before the detaining authority only subsequent to the passing of the impugned order and hence the authority could not have arrived at a decision proper that the activities of the detenu are prejudicial to the maintenance of public distribution system and hence the order of detention has got to be said aside.
The Court heard the learned Additional Public Prosecutor for the State on the submissions made by the counsel for the petitioner.
After looking into the materials available on record and considering the submissions made on either side, the Court is of the considered opinion that the order under challenge is infirm and hence it has got to be set aside on the grounds urged by the learned Counsel for the petitioner.
It is not in controversy that pursuant to the recommendations made by the Sponsoring Authority, the detenu was ordered to be detained under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 branding him as a "black marketer" on the ground that he was involved in two adverse cases and in one ground case as referred to above. Paragraph 5 of the Grounds of Detention annexed to the order of detention reads as under:
5)I am aware that Thiru. Manoharan is in remand in Uthamapalayam Civil Supplies Criminal Investigation Department Crime No. 65/2010 and he has applied bail application at Theni Judicial Magistrate Court on 26.02.2010 with C.A. No. 363/2010, he got call on 01.03.2010. In similar cases bails are granted by concerned Court or Higher Courts after lapse of time. In that event I trust that, it is very difficult to watch over his activities. If the detenu comes out on bail he is likely to indulge in such further prejudicial activities in future as well and therefore there is a compelling necessity to pass an order of detention against the detenu with a view to prevent him from indulging in such prejudicial activities in future.
A reading of the above would indicate that the detenu has made an application for bail before the Judicial Magistrate, Theni, on 26.02.2010 in C.A. No. 363/2010 and it was posted to 01.03.2010 and thus it is quite clear that the application was pending on the date when the order of detention came to be passed. At this juncture, it is pertinent to point out that nowhere in the grounds of detention the detaining authority has stated that whether there was any possibility real or imminent or likelihood of the detenu coming out on bail. Merely because bail application is pending, it cannot be stated that the detenu would get bail and indulge in future activities which would be prejudicial to the maintenance of public distribution system. So long as bail is not granted or there is likelihood of the detenu coming out on bail, no question of the detenu indulging in such activities which would be prejudicial to the maintenance of public distribution system would arise and hence the subjective satisfaction arrived at by the detaining authority cannot be based on any material, much less cogent material and it also shows non-application of mind on the part of the detaining authority.
Apart from that, as rightly pointed out by the learned Counsel for the petitioner, the bail application filed by the detenu in Application No. 363/2010 was made on 26.02.2010 and same was also posted for hearing on 01.03.2010 but the order of detention came to be passed on 28.02.2010. As could be seen from the booklet, the order of dismissal of bail application made by the Judicial Magistrate on 01.03.2010 is also found in the booklet and this casts a doubt whether all the materials found in the booklet were actually placed before the detaining authority after the impugned order of detention came to be passed on 28.02.2010.
Added further, delay has occurred in consideration of the representation made by the detenu before the Government. The representation, dated 23.03.2010, was received by the Government on 25.03.2010 and remarks were called for from the detaining authority on the next day i.e. 26.03.2010 but, actually such remarks were received by the Government only on 07.04.2010, after a delay of 12 days and no explanation was forthcoming in order to excuse such an inordinate delay. Apart from that, the delay of 12 days cannot be excused, even assuming few days were holidays in between. In the circumstances, in the considered opinion of the court, the delay has caused prejudice to the interest of the detenu and on this ground also the impugned order of detention is liable to be quashed.
Accordingly, the habeas corpus petition is allowed and the impugned order of detention in P.D. No. 1/2010, dated 28.02.2010, passed by the 1st respondent is quashed. The detenu Manoharan, S/o. Chinnathevar, is directed to be set at liberty forthwith, unless his presence, in accordance with law, is required in connection with any other case.