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Judgment
S. Palanivelu, J.—The order of detention, dated 18.08.2007, passed by the first respondent vide C.M.P. No. 3/2007(CS) against the
detenu, namely, Soundarrajan, branding him as a Black Marketeer, is under challenge in this Habeas Corpus Petition, filed by the wife of detenu.
Detenu came to adverse notice of the police in a case in Crime No. 457 of 2006, for the offence u/s 17 of Tamil Nadu Kerosene (R.T) 1973
read with 7(1)(a)(ii) of The Essential Commodities Act,1955, on the file of Madurai Civil Supplies Criminal Investigation Department. It is stated
therein, that, on 17.06.2006, the detenu, along with his associate, was found in possession of 3630 litres of kerosene, meant for Public Distribution
System, with an intention to sell it at a higher price in black market and, as such, they were arrested and the contraband was also confiscated.
The facts alleged in the ground case are, that, on 14.08.2007, at 10.00 hours, when the Inspector of Police, Civil Supplies Department,
Madurai Unit, and his party were engaged in a raid along with Sethuraman, Madurai Civil Supplies Flying Squad Tahsildar; Paulraj, Revenue
Inspector, and Thangaraj, Office Assistant, Flying Squad, Civil Supplies, Madurai, to detect cases of hoarding and smuggling of essential
commodities, on a tip-off, they stormed into the asbestos shed of one Baghyalakshmi, in front of K.C.S. Rubber Company at Koachadai,
Melakkal Main Road, Lala Sathiram, and found a person standing with 30 barrels of 200 litre capacity each and, on seeing them, he got alerted
and attempted to flee; however, he was apprehended and identified as Soundarrajan; the barrels were checked and found containing 6000 litres of
blue kerosene, without valid licence to stock or for sale; the said Soundarrajan gave a voluntary confession in the presence of witnesses and he
stated that he used to purchase kerosene from card holders and sell it for a profit of Rs. 5/- per litre; a case was registered against him in Crime
No. 539 of 2007 for the offence u/s 17 of Tamil Nadu Kerosene (R.T) 1973 read with 7(1)(a)(ii) of The Essential Commodities Act, 1955;
thereafter, he was produced before the Judicial Magistrate No. V, Madurai, on 15.08.2007; sent for remand up to 28.08.2007 and lodged in
Central Prison, Madurai.
The quintessence of the argument of the learned Counsel for the petitioner is that the detaining authority, namely, first respondent had woefully
failed to apply his mind at the time of passing the detention order and, therefore, the same got vitiated. According to him, Page 53 of the booklet
produced by the learned Additional Public Prosecutor is a copy of the bail petition in Crl. M.P. No. 3698 of 2007, which was filed by the detenu
before the Judicial Magistrate No. V, Madurai, on 17.08.2007, and, on that day itself, the respondent police filed a petition, requesting the Court
to adjourn the matter by four weeks for filing a written reply, since the Inspector of Police had gone out on other duty, however, on 18.08.2007,
the petition was taken up by the said Court and the same suffered dismissal, with an observation to the following effect:
Heard both sides. Records and objection perused. Upon considering the nature of case, gravity of offence and stage of investigation, this Court
has declined to allow the application.
In the result, this petition is dismissed.
The learned Counsel also produced a copy of the request filed by the police and the above said order passed on 18.08.2007 as well. He further
placed reliance upon a Division Bench decision of this Court reported in Arunachalam v. State of Tamil Nadu 2006 (2) MLJ (Cri) 1188, in which
it has been observed as follows:
...As rightly pointed out by the learned Counsel for the petitioner, the detaining authority, having found that the bail application filed by the
detenu is pending before the High Court, Chennai, in Crl. O.P. No. 19569 of 2006, has arrived at a conclusion that it would be possible for the
detenu to come out on bail by filing bail application before the concerned Court or higher Courts, which amply shows his non-application of mind
in arriving imminent possibility of the detenu being coming out on bail. It is not in dispute that when the bail application filed earlier is still pending,
unless the said petition is dismissed, the detenu cannot move another bail application. We are satisfied that the conclusion arrived at by the
detaining authority cannot be sustained and the detention order is liable to be quashed on the ground of non-application of mind and accordingly,
the same is quashed.
In the above said case, when the bail application was pending before the Court, since the detaining authority had observed that it would be
possible for the detenu to come out on bail by filing bail application, the same was considered to be a non-application of mind.
In the present case, the detention order came to be passed on 18.08.2007, in which the first respondent mentioned about the pendency of the
bail application and observed that there was a real possibility of the detenu coming out on bail. The relevant portion in the detention order goes
thus:
I am aware that Thiru Soundarrajan is in remand at Madurai Central Jail in Madurai Civil Supplies Criminal Investigation Department Crime No.
539/2007 and has filed bail application before the learned Judicial Magistrate No. V, Madurai on 15.8.2007 and that was come up for hearing on
17.8.2007 and it has been adjourned to 18.8.2007 for disposal. In similar cases bails are granted by the concerned Court or Higher Courts after
lapse of time and there is a real possibility of his coming out on bail....
In the counter affidavit filed by the first respondent, it is stated that the detention order was passed on 18.08.2007 at about 4.00 p.m. and, while
passing the detention order, no order had been passed in the bail application and, hence, there was no possibility or chance for the police to
enclose the bail order passed by the Court in the booklet.
The above said attitude of the detaining authority receives a scathing attack from the learned Counsel for the petitioner, who contends that even
prior to passing of the order in the bail application, the detaining authority had predetermined his mind and judged that the accused would get
favourable orders at the hands of the Judicial Magistrate.
Even in our view, the apprehension entertained in the mind of the detaining authority is not justifiable, for the reason that he has pre-judged the
matter in a wrong way. Concedingly, he could not foresee the nature of order passed by the Court. Particularly speaking, the accused was
arrested on 14.08.2007 and he filed the bail application on 17.08.2007, at which time the investigation was pending. In such a circumstance, one
could not easily pounce that the Court would certainly grant bail to the accused. Hence, we are of the considered opinion that the detaining
authority has passed the impugned order of detention, without proper application of mind, rendering the same vitiated.
Accordingly, we allow this Habeas Corpus Petition and set aside the order of detention. As such, the respondents are directed to set the
detenu at liberty forthwith, unless he is required in connection with any other case.