S. Kavitha vs The Government of India, The State of Tamil Nadu and The District Collector and District Magistrate

M. Jaichandren, J.—This Habeas Corpus Petition has been filed to call for the records relating to the order of the third respondent, dated

16.10.2012, made in Cr. M.P. No. 2/2012(CS) and quash the same, and to produce the detenu, namely, R. Saravanan, Son of Ravi, aged about

28 years, confined in the Central Prison, Coimbatore, before this Court, and to set him at liberty. The petitioner is the wife of the detenu, R.

Saravanan, Son of Ravi, who has been detained, u/s 3(2)(a), read with 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of

Essential Commodities Act, 1980, pursuant to the order passed by the third respondent in his proceedings, in Cr. M.P. No. 2/2012(CS), dated

16.10.2012. In view of the detention order passed by the third respondent, dated 16.10.2012, the detenu had been lodged in the Central Prison,

Coimbatore, terming him as a ''Black Marketeer''.

Even though various grounds had been raised in the Habeas Corpus Petition filed by the petitioner, the learned counsel appearing on behalf of

the petitioner had placed emphasis on the grounds mentioned hereunder, while stating that the impugned detention order, passed by the Detaining

Authority, is bad in the eye of law. He had submitted that there was clear non-application of mind on the part of the Detaining Authority, while

passing the detention order against the detenu.

The learned counsel appearing for the petitioner had referred to paragraph-5 of the grounds of detention, which reads as follows:

I am aware that Thiru. R. Saravanan, aged 28 years, S/o. Ravi who is in remand in Central Prison, Coimbatore in connection with Civil

Supplies, CID, Tiruppur Unit Crime No. 277/2012, U/s. 6(4) of TNSC (R.D.C.S) Order 1982 r/w 7(1)a(ii) of E.C. Act 1955 till 22.10.2012 as

per the order of Judicial Magistrate No. IV Court, Coimbatore. Further, he filed first bail petition before the Court of Judicial Magistrate No. 4,

Coimbatore in C.M.P.No. 3337 of 2012 was dismissed on 13.9.2012, the second bail petition filed before the above court in C.M.P.No. 3487

of 2012 was also dismissed on 21.9.2012. The third bail petition filed by the accused before the above said court in C.M.P.No. 3966 of 2012

was also dismissed on 12.10.2012. In a similar case registered in Tiruppur Civil Supplies Crime Investigation Department Crime No. 19/2012,

U/s. 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)a(ii) of Essential Commodites Act 1955 bail was granted to the same accused Thiru. R.

Sarvanan, aged 28 years, Son of Ravi, Door No. 267, Mariamman Koil Street, Tiruppur Road, Kangayam Taluk, Tiruppur District in C.M.P.No.

533/2012 on 06.03.2012 by Judicial Magistrate No. IV Court (Special Court), Coimbatore. Hence, there is real possibility of his (Thiru. R.

Saravanan) coming out on bail by filing another bail petition in the above court or in the higher courst, since bails are granted by the court in such

cases. If he comes out on bail, he will indulge in such further activities, which are prejudicial to the maintenance of supplies of commodities essential

to the community. Further, recourse to normal criminal law will not have the desired effect of effectively preventing him from indulging in such

activities, which are prejudicial to the maintenance of supplies of commodities essential to the community. On the materials placed before me, I am

fully satisfied that the said Thiru. R. Saravanan is a Black Marketeer and there is a compelling necessity to detain him in order to prevent him from

indulging in such prejudicial activities in furture, which are prejudicial to the maintenance of supplies of Essential Commodities Act, 1980, in order

to prevent him from indulging in activities prejudicial to the supply and distribution of commodities to the community under the provisions of 3(1)

read with 3(2) a of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 7 of 1980).

In paragraph-5 of the grounds of detention the Detaining Authority had stated that the detenu is in remand in the Central Prison, Coimbatore, in

connection with Civil Supplies, CID, Tiruppur Unit Crime No. 277/2012, under Section6(4) of TNSC (RDCS) Order 1982, read with 7(1)(a)(ii)

of Essential Commodities Act, 1955. It had also been stated that the detenu had filed a bail application before the Court of Judicial Magistrate No.

IV, Coimbatore, in C.M.P No. 3337 of 2012. It had also been stated that the said bail petition had been dismissed, on 13.9.2012. The Detaining

Authority had further stated that the second bail petition filed before the said court, in C.M.P.No. 3487 of 2012, had also been dismissed, on

21.9.2012. Further, the third bail petition filed by the accused, in C.M.P.No. 3966 of 2012, had also been dismissed, on 12.10.2012. However,

in a similar case registered in Tiruppur Civil Supplies Crime Investigation Department Crime No. 19 of 2012, u/s 6(4) of TNSC (RDCS) Order

1982, read with 7(1)(a)(ii) of Essential Commodities Act, 1955, bail had been granted to the detenu. As such, there is a real possibility of the

detenu coming out on bail by filing another bail petition in the Court of Judicial Magistrate No. IV, Coimbatore, or in the higher courts. Further, it is

noted that the Detaining Authority had not given all the necessary details of the cases registered in connection with Civil Supplies, CID, Tiruppur

Unit Crime No. 277/12, pending on the file of the Judicial Magistrate No. IV, Coimbatore and in Tiruppur Civil Supplies Crime Investigation

Department Crime No. 19/2012, on the file of the Court of Judicial Magistrate No. IV, Special Court, Coimbatore. The Detaining Authority has

not shown sufficient reasons to substantiate his belief that there is a real possibility of the detenu coming out on bail, by filing another bail petition

before the Court of Judicial Magistrate No. IV, Coimbatore. There is nothing on record to show that a bail petition was being moved before the

said Court, on behalf of the detenu. As such, there is non-application of mind by the detaining authority in passing the impugned detention order,

dated 16.10.2012.

The learned counsel appearing on behalf of the petitioner had also stated that a pre-detention representation, dated 4.10.2012, had been sent

on behalf of the detenu, to the detaining authority, and the same had been received on 8.10.2012. Even though the detaining authority had received

the pre-detention representation, dated 4.10.2012, sent on behalf of the detenu, prior to the passing of the detention order, dated 16.10.2012, the

said representation had not been disposed by the detaining authority, till date. Hence, the impugned detention order is bad in the eye of law. In

support of his contention, the learned counsel had relied on the decision reported, in T.M. Syed Ali and another Vs. State of Tamil Nadu and five

others, .

Per contra, the learned counsels appearing on behalf of the respondents had submitted that the detention order had been passed by the detaining

authority after arriving at his subjective satisfaction, based on the cogent materials available before him. He had further submitted that the order of

detention passed by the detaining authority does not suffer from non-application of mind by the said authority.

In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents, and on a perusal of

the records available, this Court is of the considered view that there has been no proper application of mind, by the detaining authority, before

passing the impugned order of detention. Eventhough the Detaining Authority had stated that there is a real possibility of the detenu coming out on

bail, by filing a bail petition, in connection with Civil Supplies, CID, Tiruppur Unit Crime No. 277 of 2012, nothing has been shown on behalf of

the Detaining Authority to substantiate his claim that there is a real possibility of the detenu coming on bail, by filing a bail petition before the Court

of Judicial Magistrate No. IV, Coimbatore. It has also been noted that all the three bail petitions, filed on behalf of the detenu, had been dismissed

by the said Court. Further, nothing has been shown on behalf of the Detaining Authority that the cases registered in Crime Nos. 277 and 19 of

2012 are similar in nature, in all aspects.

In a number of decisions this Court had held that cogent materials should be available for the Detaining Authority to arrive at his subjective

satisfaction for the passing of the detention order. The materials available on record should be sufficient for the Detaining Authority to arrive at his

decision that the detenu is likely to be enlarged on bail and that, in such a case, he would indulge in activities, which would be prejudicial to the

maintenance of public order or for the supplying of essential commodities to the public. Unless, such materials are available, the decision of the

Detaining Authority to detain the detenu, by passing the detention order, would clearly be an indication of non-application of mind on the part of

the Detaining Authority, in the passing of the detention order.

8.1) In A. Murugesan Vs. The Secretary to Government Food, Cooperation and Consumer Protection Department, The District Collector and the

District Magistrate, Salem District, Salem and The Additional Secretary to Government of India, Ministry of Consumer Affairs, Food and Public

Distribution Department of Consumer Affairs, Government of India, it had been held that, while no bail application had been filed on behalf of the

detenu, before the Court concerned, it would be too early for the detaining authority to record his satisfaction that the detenu is likely to come out

on bail or that, if he is let to remain at large, he would indulge in such activities, in future, which would be prejudicial to the maintenance of public

order. Unless, cogent materials are available, the subjective satisfaction of the detaining authority would be a clear indication of non-application of

mind by the detaining authority in the passing of the detention order.

8.2) In Balaji Vs. State of Tamil Nadu and The Commissioner of Police, , a Division Bench of this Court, referring to the decisions, in Chandru Vs.

The Commissioner of Police, Thiruchirapalli City, Trichy and another ( 2007(1) TCJ 766, and Chelladurai Vs. State of Tamil Nadu, represented

by Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-600 009, and another, had held that the mere

statement of the Detaining Authority, that there is a real possibility of the detenu coming out on bail, especially, when no bail application had been

filed on behalf of the detenu, shall not be sufficient to show that the satisfaction recorded by the Detaining Authority is based on cogent materials.

8.3) In Gowri Vs. The Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department and The District Collector and District

Magistrate, , this Court had held that the subjective satisfaction recorded by the Detaining Authority was without sufficient or cogent materials,

relying on the decision of the Full Bench of this Court, in Kalaiselvi, G. Vs. The State of Tamil Nadu ( 2007(5) CTC 657), wherein, it had been

held as follows:

From the reading of the aforesaid decisions, it is clear that the conclusion of the Detaining Authority that there is imminent an possibility of the

detenu being released on bail must be based on cogent materials and not on the mere ipse dixit of the Detaining Authority. As has been observed

by the Supreme Court, the question as to whether there is possibility of being released on bail depends upon several factors, such as nature of

offence, the stage of the investigation, the availability of statutory bail etc.

The detaining authority had failed to dispose of the pre-detention representation, dated 4.10.2012, before passing the detention order, dated

16.10.2012. The non-consideration of such representation would certainly amount to non-application of mind and it would, consequently, vitiate

the order of detention. In such circumstances, this Court finds it appropriate to quash the impugned detention order, dated 16.10.2012.

Accordingly, the impugned detention order, passed by the third respondent is quashed, and the Habeas Corpus petition stands allowed. The

detenu is directed to be set at liberty, forthwith, unless his detention is required in connection with any other case or cause.