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Judgment
M. Chockalingam, J.—This Writ Application challenges the order of detention passed by the first respondent made in M.H.S.Confdl. No. 13/2009 dated 28.1.2009 whereby the petitioner''s brother-in-law was detained under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980 (Act 7 of 1980) branding the detenu as a "Black Maketeer".
Consequent upon the recommendation made by the sponsoring authority that the detenu was involved in the Crime No. 8/2009 u/s 3(1)(a)(b)(c), 4(1)(b)(c)(2), 6 and 7(1)(b)(c) LPG (Regulation of Supply and Distribution) Order 2000 read with 7(I) a (II) of Essential Commodities Act, 1955 was registered by the Tirunelveli Civil Supplies CID, when he was found in illegal possession of domestic gas cylinder, which was meant for the purpose of public distribution system on 20.1.2009, after looking into all the materials made available, the detaining authority came to the conclusion that the activities of the detenu were prejudicial to the public distribution of gas cylinders in order to enrich himself and should be ordered to be detained under the prevention of the detention law branding him as a "Black Marketeer" and accordingly, made the order under challenge which is the subject matter of challenge before this Court.
Assailing the order of detention, the learned Counsel brought to the notice of the Court, the following two main points:
(i) Firstly, insofar as Crime No. 8/2009 referred to above, the detenu made a bail application in Cr.M.P. No. 87/2000 before the Judicial Magistrate No. II, Tirunelveli and the sme was dismissed on 23.1.2009. The order under challenge came to be passed when neither bail application was filed or pending before any Court of criminal law but the detaining authority has stated in its order that there was real possibility of the detenu coming out on bail and such an observation was made without any material or basis whatsoever. It was only an apprehension in the mind of the detaining authority and mere apprehension would not be sufficient to pass an order of detention.
(ii) Secondly, as per the materials available in the case in Crime No. 8/2009, the detenu was arrested at about 3.45 p.m., on 20.1.2003 but the case came to be registered at 7.30 p.m., but at that time, the arrest card would contain Crime No. 8/2009. It was asserted by the investigating agency that the arrest card was prepared at the spot. Under the circumstances, the detaining authority should have called for a clarification as to the discrepancy but not done so. Hence, the order of detention has got to be set aside on this ground also.
4.The Court heard the learned Additional Public Prosecutor on the above contention and paid its anxious consideration on the submissions made. Considering the submissions made, the Court agrees with the learned Counsel for the petitioner to set aside the order of detention.
It is not in controversy that the order under challenge came to be passed on 20.1.2009. After scrutiny of the materials made available, the detaining authority passed the order of detention branding the detenu as a "Black Marketeer". Firstly, the bail application was actually filed on 23.1.2009 and the same came to be dismissed on 27.1.2009. Thereafter, had filed no bail application or was pending before any Court of criminal law but the detaining authority has stated in its order that there was real possibility of the detenu coming out on bail. Such an observation was made without any material or basis whatsoever. It was only an apprehension in the mind of the detaining authority and mere apprehension would not be sufficient to pass an order of detention. To pass such an order, the Act requires a specific material, which would impel the authority to make such an observation. In the absence of such material, making such an observation is without any basis and hence, the order of detention has got to be set aside.
Secondly, from the materials available, it could be seen in Crime No. 8/2009 referred to above that the detenu was arrested 20.1.2009 at about 3.45 p.m., and then he was taken to the Police Station and the case came to be registered at 7.30 p.m,. But, at that time, the arrest card would contain Crime Number. Had it been prepared as averred by the investigating agency, crime number could not have been come into existence. Then it casts a doubt whether the arrest card could have been prepared at the spot as put-forth by the investigating agency. Naturally, one would expect a clarification to be called for but the detaining authority had not done so.
On the above referred grounds, the order of detention has got to be set aside. Accordingly, the order of detention is set aside. The detenu is directed to be set at liberty forthwith unless he is required in connection with any other case. The Habeas Corpus Petition is allowed.