The detention order was set aside due to non-application of mind, insufficiency in the service of intimation of rejection of representation, and insufficient opportunity given to the detenu.

M. Chockalingam, J.

Challenge is made to an order of the second respondent made in C.M.P.No.7/PBMMSEC Act/2009 (J3) dated 19.03.2009 whereby the son of the petitioner namely Vadivelu was ordered to be detained under the provisions of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 branding him as a black marketeer.

2. The affidavit in support of the petition along with all the materials including the order under challenge are perused. The Court heard the learned Counsel for the petitioner.

3. Concededly, the order under challenge came to be passed on the recommendations made by the sponsoring authority that the case came to be registered against the detenu in Crime No.99/2009 under section 6(4) of TNSC (RDCS) Order 1982 r/w 7(1)(a)

(ii) of Essential Commodities Act 1955 in Civil Supplies Salem, when he was found in possession of 200 bags of Public Distribution System rice. On scrutiny of the materials available, the detaining authority recorded its subjective satisfaction that the activities of the detenu were prejudicial to the maintainability of the Public Distribution System and in order to prevent him from indulging in such activities in future, it became necessary to make the order of detention, made the order accordingly, which is the subject matter of challenge.

4. Advancing the arguments on behalf of the petitioner the learned counsel made the following points for consideration.

.(a) Firstly, according to the department, the detenu was found in possession of 20 bags of PDS rice on 13. 2009 The order came to be passed on 3. 2009. No bail application was filed before any Court of law. While the matter stood thus, the detaining authority have observed in its order, if the detenu comes out on bail he likely indulge in such activities. Thus, the said observation when no bail application was filed or pending, and even without observing whether there was any possibility of coming out on bail, was actually without any basis or reason whatsoever. This would indicate the non-application mind on the part of the authorities.

.(b) Secondly, a representation was actually made to the Central Government on 23. 2009 and it was received on 33. 2009. An intimation was given that a representation was rejected on 15. 2009. The learned counsel would submit that there was delay and only an intimation of rejected was served upon the detenu and not an order. So long as the order of rejection was not served upon the detenu, the detenu was unable to understand whether the representation given by him was considered properly or not.

.(c) Thirdly, the order came to be passed on 13. 2009. The Board came to be constituted on 24. 2009 and an intimation as to the constitution of the Board was served upon the detenu at Salem on 14. 2009, 14. 2009 and 14. 2009 being Saturday and Sunday- holidays, he was brought to Madras on 20.4.2009 i.e., on the next day. Thus, no sufficient opportunity was given to the detenu to effectively defend or putforth his case before the disciplinary authority. In support of the above said contention, the learned counsel relied on the judgment of the Division Bench made in HCP No.1411/2007 dated 13. 2008. Under such circumstances, on these three grounds, the order of detention has got to be set aside.

5. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.

6. In so far as the first contention is concerned, the detenu was found in possession of Public Distribution System rice on 13. 2009 and the order of detention came to be passed on 13. 2009, in the meantime, no application for bail made by the detenu pursuant to his arrest. In the instant case, a reading of the order under challenge would clearly indicate that the authority has not even stated that there was real possibility or imminent possibility of the detenu coming out on bail. On the contrary, it was observed, if he co