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Judgment
M. Chockalingam, J.—Challenge is made to an order of the first respondent made in No. 3/2009 (CS) dated 27.2.2009, whereby the husband of the petitioner herein by name Steepanraj 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 Marketeer.
The Court heard the learned Counsel for the petitioner and looked into all the materials available and in particular, the order under challenge.
Admittedly, pursuant to the recommendations made by the sponsoring authority that the said detenu Steepanraj was involved in two adverse cases namely (1) Dindigul Civil Supplies Criminal Investigation Department Crime No. 757/2008 u/s 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of Essential Commodities Act, 1955 and (2) Dindigul Civil Supplies Criminal Investigation Department Crime No. 27/2009 u/s 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of Essential Commodities Act, 1955, and also one ground case registered by Dindigul Civil Supplies Criminal Investigation Department in Crime No. 36/2009 u/s 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)(ii) of E.C. Act 1955, for the three incidents, the detaining authority after looking into all the materials available, took the view that the activities of the detenu were prejudicial to the Public Distribution System, and he was making enrichment, and it has got to be taken note of seriously and accordingly passed the order of detention declaring him as a black marketeer which is the subject matter of challenge before this Court.
Advancing arguments on behalf of the petitioner, the learned Counsel placed the following grounds:
(a) Firstly, the order under challenge came to be passed on 27.2.2009. The first adverse case was registered on 25.7.2008 in Crime No. 757/2008. The second adverse case was registered on 28.1.2009, in Crime No. 27/2009, and the ground case was registered in Crime No. 36/2009 for an incident that took place on 6.2.2009. As far as the second adverse case was concerned, he was actually not arrested; but, he was arrested only in the ground case in Crime No. 36/2009, and the arrest was shown in the second adverse case also.
(b) Secondly, he made bail application in the ground case in Cr.M.P. No. 483/2009, and the same was actually allowed by the Judicial Magistrate No. III, Dindigul, on 25.2.2009. He filed bail application Cr.M.P. No. 417/2009 in Crime No. 27/2009, and the same was actually dismissed on 16.2.2009. Thereafter, he did not make any bail application at all, and thus on the date when the order came to be passed on 27.2.2009, no bail application was pending in the hands of any criminal forum in respect of the second adverse case. But, the authority has stated in its order that there was a real possibility of the detenu coming out on bail. It would be quite indicative of the fact that it was without any material whatsoever.
(c) Thirdly, the bail order in Crime No. 36/2009, was actually placed before the authority. As far as the application was concerned, the detenu asked for a copy of the same; but, it was not given to him. Once it has been relied upon by the authorities a copy should have been furnished, but not done so.
Added further the learned Counsel that while such an order of detention was passed, it is mandate in law that within a period of seven days, all the materials pertaining to the grounds of detention must be placed before the Central Government; that the order was passed actually on 27.2.2009; that the counter of the Central Government would read that it was sent on 5.3.2009 by the State Government and received by the Central Government on 20.3.2009; that it is true that the date 5.3.2009 would fall within the period of seven days from the date of order namely 27.2.2009; that had it been true that it was really despatched on 5.3.2009, by the State Government why it has reached the Central Government only on 20.3.2009 with such a delay; that the same would mean that it has taken 15 days for the transit of the report; that this would clearly indicate that it could not have been sent on 5.3.2009 as averred in the counter, and it has got to be proved by the department and on these grounds, the order must be set aside.
The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
On careful scrutiny of the entire materials the Court has to necessarily agree with the learned Counsel for the petitioner. The order terming the detenu as a black marketeer came to be passed on 27.2.2009. There were three cases registered against him. As far as the ground case in Cr. No. 36/2009 is concerned, he was actually arrested. As far as the second adverse case in Crime No. 27/2009 is concerned, he was not arrested, but arrest was shown. The bail was asked for by the detenu in the ground case in Cr.M.P. No. 483/2009, and the same was ordered by the Judicial Magistrate No. III, Dindigul, on 25.2.2009. But, at the same time, Cr.M.P. No. 417/2009 for bail filed by the detenu in respect of the second adverse case in Crime No. 27/2009 came to be dismissed on 16.2.2009. Thereafter, it is not the case of the petitioner that there was any bail application filed by the detenu in respect of the second adverse case. Thus on the date when the order of detention came to be passed on 27.2.2009, no bail application was either filed or pending in respect of the second adverse case. But the authority has stated in its order that there was a real possibility of the detenu coming out on bail. It can be commented that this was only an apprehension in the mind of the authority and without any real possibility or any material at all.
The next ground that the copy of the bail application in Cr. No. 36/2009 was not given to him cannot be a ground in the considered opinion of the Court, and what was relied on document was actually the order passed by the Court which also contained the contents of the application. The contention that a copy of the application was not independently served, in the considered opinion of the Court, cannot by itself form a ground to set aside the order.
As far as the other ground is concerned, this Court is able to see force in the contention. Law mandates that within a period of 7 days from the date of passing of the order of detention, a report must be forwarded by the State Government to the Central Government. Admittedly, the impugned order came to be passed on 27.2.2009. Paragraph 6 of the counter by the Central Government would read that it was forwarded by the State Government vide letter dated 5.3.2009 and received by the Central Government on 20.3.2009. As rightly pointed out by the learned Counsel for the petitioner, if it was really despatched by the State Government on 5.3.2009, it would have reached the Central Government within a reasonable time. But, according to the counter, it reached only on 20.3.2009. Under the circumstances, a query was placed before the Additional Public Prosecutor what is the material available in the case file to show that actually it was despatched on 5.3.2009, by the State Government. The Additional Public Prosecutor after perusal of the entire C.D. file, pertaining to the order in question, would answer that no material is available in the bundle indicating that it was actually despatched on 5.3.2009. Thus, it is a case where the material to establish that it was sent on 5.3.2009 is actually absent. Under the circumstances, it has got to be taken in favour of the petitioner''s case. On the above grounds, without any hesitation, this Court has to set aside the order.
Accordingly, this habeas corpus petition is allowed setting aside the order of the first respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.