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2010 Supreme(Mad) 5187
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM & THE HONOURABLE MR. JUSTICE C.S. KARNAN
S. Chella Kutty
Versus
The Secretary to Government Cooperative, Food and Consumer Protection Department, Chennai & Others
H.C.P. No. 1448 of 2010
Decided On : 02-12-2010
For the Petitioners:V. Parthiban, Advocate.
For the Respondent: R1 & R2 - Babu Muthu Meeran, Additional Public Prosecutor, R3 - D.S. Ravikumar, CGC.
The detaining authority must apply its mind and consider the real possibility of the detenu coming out on bail when making an order of detention.
Headnote:
Detention - Black Marketing - The court set aside the order of detention on the grounds of non-application of mind by the detaining authority and lack of real possibility of the detenu coming out on bail.
Fact of the Case:
The detenu was detained under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980 based on his activities prejudicial to the public distribution system. The detenu was involved in multiple adverse cases related to possession of PDS Rice.
Finding of the Court:
The court found that the detaining authority did not apply its mind and there was no real possibility of the detenu coming out on bail, making the order of detention defective.
Issues: The issues involved the non-application of mind by the detaining authority and the lack of real possibility of the detenu coming out on bail.
Ratio Decidendi: The court set aside the order of detention due to the detaining authority's non-application of mind and lack of real possibility of the detenu coming out on bail.
Final Decision: The habeas corpus petition was allowed, and the order of detention passed by the second respondent was set aside, directing the detenu to be set at liberty forthwith unless his presence is required in connection with any other case.
(Order of the Court was made by M. CHOCKALINGAM, J.)
1. This petition challenges an order of detention made by the second respondent against one Saravanan @ Saravanakumar the friend of the petitioner herein, dated 12.7.2010, branding him as a black marketeer under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980, after recording the subjective satisfaction that the activities of the detenu were prejudicial to the public distribution system.
2. The Court heard the learned Counsel for the petitioner and the materials available are looked into.
3. It is not in controversy that pursuant to the recommendations made by the sponsoring authority that the detenu was involved in three adverse cases namely (1) Erode Civil Supplies Criminal Investigation Department Crime No.10/2007 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955; (2) Erode Civil Supplies Criminal Investigation Department Crime No.931/2008 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 and (3) Nambiyur Police Station Crime No.262/2009 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955, and also in a ground case registered by Erode Civil Supplies Criminal Investigation Department in Crime No.477/2010 under Sec.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 for an occurrence that took place on 6.7.2010, when he was found in possession of 30 bags of PDS Rice each weighing 50 kgs. along with four others, and he was arrested and produced before the Judicial Magistrate, Erode, and remanded to judicial custody, the detaining authority on scrutiny of the entire materials, has made the order under challenge after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of supplies of commodities essential to the community.
4. Advancing arguments on behalf of the petitioner, the learned Counsel would submit that in the instant case, it is an admitted position that Crime No.477/2010 was registered on 6.7.2010, not only against the detenu Saravanan, but also against four others; that all were arrested and remanded to judicial custody on the very day; that he has not moved for bail; that while the matter stood thus, when an order came to be passed within a short span of five days that was on 12.7.2010, the authority though stated that he would indulge in such activities in future, has not even stated whether there was a real possibility or imminent possibility or likelihood of the detenu coming out on bail; that it would be indicative of the non-application of mind on the part of the authority; that if the detenu did not come out on bail, there is no question of indulging in such activities in future that would arise; and that under the circumstances, the order is vitiated.
5. The learned Counsel took the Court to page Nos.77 and 79 of the booklet which contained the arrest card and remand report respectively; that both the documents would include not only the provisions of the E.C. Act, but also Sec.307 IPC; but the FIR would clearly indicate that no case under Sec.307 IPC was registered against the detenu; that under the circumstances, it would be quite clear that the authority has not applied its mind, and hence the order of the detaining authority has got to be set aside.
6. The Court heard the learned Additional Public Prosecutor for the State and also the learned Counsel for the Central Government on the above contentions and paid its anxious consideration on the submissions made.
7. As could be seen above, the detaining authority after recording the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of supplies of commodities essential to the community, has made the order which is under challenge. It is not in controversy that
