1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.12.2011 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU H.C.P (MD) No.956 of 2011 Ramani .. Petitioner. Versus 1. The District Collector and District Magistrate Madurai District,Madurai. 2. The Secretary to Government of Tamil Nadu Food, Co-operation and Consumer Protection Department,Secretariat, Chennai-600 009 3. The Additional Secretary to Government of India,Ministry of Consumer Affairs, Food and Public Distribution,(Department of Consumer Affairs)Room No.270, Krishi Bhavan, New Delhi – 110 001 .. Respondents. Prayer: Petition filed under Article 226 of the Constitution of India to issue Writ of Habeas Corpus Petition filed to call for the records pertaining to the order of detention passed by the first respondent in proceedings in C.M.P.No.09/2011 (CS) dated 8.10.2011, and set aside the same and direct the respondents to produce the detenu K.Lal @ Lalbagadur, s/o.Kandasamy aged 41 years, before this Court, now confined in Central Prison, Madurai and set him at liberty. For Petitioner : Mr.M.Ramadhas For Respondents : Mr.T.Mohan Additional Public Prosecutor O R D E R (The Order of the Court was made by M.JAICHANDREN,J) This Habeas Corpus Petition has been filed to call for the records relating to the order of the first respondent, dated 8.10.2011, made C.M.P.No.09 of 2011 (C.S.), and quash the same, and to produce the detenu, namely, K.Lal @ Lalbagadur, son of Kandasamy aged about 41 years, confined in the Central Prison, Madurai, before this Court and to set him at liberty. 2. The petitioner has stated that the first respondent had passed the impugned detention order, dated 8.10.2011, under sub-section (1) of Section 3 read with 3(2)(a) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act 7 of 1980), directing the detention of K.Lal @ Lalbagadur, in the Central Prison, Madurai, terming him as a 'Black Marketeer'. 3. Even though various grounds had been raised in the Habeas Corpus https://hcservices.ecourts.gov.in/hcservices/ 2 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. 4. The learned counsel appearing for the petitioner had referred to Paragraph-5 of the grounds of detention, which reads as follows: “5. I am aware that Thiru K.Lal @ Lalbagadur has been remanded to Judicial custody at Central Prison, Madurai in connection with Madurai, Civil Supplies CID Crime No.524/11 u/s.6(4) of TNSC (RDCS) Order 1982 r/w. 7(i)(a)(ii) of E.C. Act, 1955. Out of two adverse cases, against Thiru K.Lal @ Lalbagadur obtained anticipatory bail in both cases. In the second adverse case charge sheet has been filed against him in the concerned court and it is pending trial before the Court. In this stage he has committed crime in the ground case. He filed a bail application before the Judicial Magistrate Court No.III, Madurai, regarding the Crime No.524/11, on 4.10.11 vide in Cr.M.P.No.6459/11 and the same was dismissed on 7.10.2011 before the Court. In the case registered in Madurai Civil Supplies CID unit crime No.453/11 u/s. 6(4) of TNSC (RDCS) Order 1982 r/w 7(i)(a) (ii) of E.C. Act 1955 against Thiru Saravanakumar and Dilipkumar were bail was granted by the Judicial Magistrate Court No.III, Madurai vide in Cr.M.P.No.5714/11 dated 25.8.2011. Hence, I infer that it is very likely of his coming out on bail in the above case Cr.No.524/11, since bail are granted in such cases by the concerned Court or Higher courts grant bail after lapse of time. Hence, I understand that it will be very difficult to have a continued watch over his activities. On the materials placed before me, I am also aware that, if Thiru K.Lal @ Lalbagadur is let to remain at large he will indulge in such activities in future which would be prejudicial to the maintenance of supplies of commodities essential to the community, continuously. Further, recourse to the 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 satisfied that the said Thiru K.Lal @ Lalbagadur is a Black Marketeer and there is a compelling necessity to detain him under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980.” 5. He had further submitted that, it is clear, from the above paragraph, that the Detaining Authority was aware that the detenu had been remanded in custody, in Crime No.524 of 2011, on the file of the Civil Supplies CID, Madurai. He had further submitted that a bail application filed for the case in Crime No.524 of 2011, on the file of the Judicial Magistrate No.III, Madurai, had been dismissed, on https://hcservices.ecourts.gov.in/hcservices/ 3 4.10.2011. Thus, the statement of the Detaining Authority that the detention order was being passed, in order to prevent the detenu from indulging in activities prejudicial to the maintenance of public order, has been made, without any materials on record. As such, it is clear that it is an ipse dixit of the Detaining Authority. It clearly shows the non- application of mind, by the Detaining Authority, while passing the detention order. 6. The learned counsel had also submitted that the Detaining Authority has not made out a case against the detenu to show that there was an imminent or a real possibility of the detenu coming out on bail. In fact, the Detaining Authority had not even mentioned about the existence of an imminent possibility or a real possibility of the detenu being released on bail and that he would indulge in activities prejudicial to the maintenance of public order, thereafter. 7. The learned counsel had further submitted that the Detaining Authority had not mentioned about similar cases, wherein, bail orders had been granted, by the Courts concerned. 8. It has been further stated that the Detaining Authority has passed the impugned detention order without having sufficient materials on record to arrive at his conclusion that the detenu is a Black Marketeer. He had passed the detention order without proper application of mind in arriving at his conclusion that the detenu is a Black Marketeer and that he would indulge in activities prejudicial to the maintenance of supplies of essential commodities, if he is allowed to be at large. The petitioner had also stated that the Detaining Authority had failed to appreciate the facts in respect of the case, in crime No.524 of 2011, while passing the detention order. 9. The learned counsel had further stated that the detenu has not acted in any manner prejudicial to the maintenance of supplies of essential commodities. It has also been stated that the first respondent has passed the impugned detention order relying on the materials placed before him, by the sponsoring authority, mechanically. There was no proper application of mind, while arriving at his subjective satisfaction, regarding the real necessity to detain the detenu. 10. The learned counsel for the petitioner had relied on the decision of the Supreme Court, in Rekha Vs. State of Tamilnadu (2011 (5) SCC 244), wherein, it has been held that, where a detention order is passed against a person already in custody, there should be a real possibility of his release on bail, if he has moved a bail application, and if it is pending. It follows, logically, that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence, the detention order will be illegal. However, there can be an exception to this rule, that is, where a co- accused, whose case stands on the same footing, had been granted bail. In such cases, the Detaining Authority can reasonably conclude that there is a likelihood of the detenu being released on bail, even though no bail application of his is pending, since, most courts, normally, grant bail on this ground. However, details of such alleged similar cases must be given, without which, the bald statement of the authority cannot be believed. https://hcservices.ecourts.gov.in/hcservices/ 4 11. The learned counsel had also submitted that, if a person is already in prison, unless a co-accused in the alleged offence had already been released, it cannot be concluded that there is an imminent possibility of the detenu coming out on bail, and that he would indulge in activities prejudicial to the maintenance of public order. Even in such a case, the co-accused ought to have been involved in the committing of the alleged offence, similar to that of the detenu, in all aspects. The learned counsel for the petitioner had also submitted that there were no cogent materials available before the Detaining Authority for the passing of the detention order, based on his subjective satisfaction. 12. It had also been stated that the detaining authority had failed to furnish the grounds of detention in clear terms, to enable the detenu to make an effective representation against his detention order. Thus, the detaining authority had failed to give a fair oppotunity to the detenu to avail the remedy of making an effective representation. As such, the mandate enshrined, in clause 5 of the Article 22 of the Constitution of India, has been infringed by the Detaining Authority. 13. The learned counsel appearing on behalf of the petitioner had submitted that the pre-detention representation, dated 4.10.2011, sent on behalf of the detenu, had been received by the first respondent, on 7.10.2011. However, the approval of the impugned detention order, dated 8.10.2011, had been granted by the state Government, only on 14.10.2011. Thereafter, the petitioner had sent a representation, dated 17.10.2011, on behalf of the detenu. The first respondent had passed an order, dated 7.11.2011, rejecting the representations sent on behalf of the detenu, on 4.10.2011, and 17.10.2011. 14. The learned counsel appearing on behalf of the petitioner had further stated that the District Collector and District Magistrate, the Detaining Authority, the first respondent herein, had no authority or jurisdiction to reject the representations sent on behalf of the detenu, after the detention order had been approved by the state Government, on 14.10.2011. In fact, the first respondent had become functus officio, after 14.10.2011. 15. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions: 15.1. In UNION OF INDIA Vs. RANU BHANDARI (2009) 1 MLJ (CRL) 54 (SC), this Court had held that, while issuing an order of detention, the Detaining Authority must be provided with all the materials available against the individual concerned, both against him and in his favour, to enable it to reach a just conclusion that the detention of such individual is necessary in the interest of the State and the general public. It has also been the consistent view that when a detention order is passed all the materials relied upon by the Detaining Authority, in making such an order, must be supplied to the detenu, to enable him to make an effective representation against the detention order, in compliance with Article 22(5) of the Constitution, irrespective of whether he had knowledge of the same or not. https://hcservices.ecourts.gov.in/hcservices/ 5 15.(1)(a). In the instant case, as some of the vital documents, which have a direct bearing on the detention, had not been placed before the Detaining Authority, there was sufficient ground for the detenu to question such omission. 15.2. In D.UMA MAHESWARI Vs. SECRETARY TO GOVERNMENT, (2009) 3 MLJ (CRL) 469, this Court had held that, to pass an order of detention, there must be specific material in the hands of the Detaining Authority. When there is no such material available, it would affect the order of detention. Also, the undue delay and unreasonable delay in considering the representation would be indicative of the lack of promptitude on the part of the officers concerned, which would affect the order of detention, since, it would also cause prejudice to the interest of the detenu. 15.3. In PUSHPARANI A. Vs. THE COMMMISSIONER OF POLICE (2003 (1) CTC 616), this Court had held as follows: “5. In spite of the fact that the representation received by the Commissioner show that the detenu had been taken into custody on 31.3.2002 itself and the same has been published at Page-3 of the Malaimalar, a Daily Publication dated 1.4.2002, the alleged incident is said to have taken place only on 2.4.2002 at 4.30 p.m., while the detenu was in illegal detention at the police station. Therefore, the non consideration of this by the Detaining Authority according to the petitioner, vitiates the impugned order. 6. Quite a number of decisions of this Hon'ble Court reported in Syed Ali v. State of Tamil Nadu, 1999 (1) MWN (Crl) 360; Mani v. The State of Tamil Nadu rep. by the Secretary to Govt. Proh. and Excise Dept., Fort St. George, Chennai - 9 and another, 2000 (1) MWN (Crl) 279, in furtherance of the principle laid down by the Apex Court reported in District Magistrate and Another. v. R. Kumaravel, 1994 SCC (Cri) 229 has clearly stated that any pre-detention representation has to be necessarily considered at the time of passing of the grounds of detention and in the absence of the same, the order gets vitiated. Consequently, in view of the fact that the pre- detention representation sent by the detenu has not been considered by the Detaining Authority at the time of passing the impugned order, the same gets vitiated and accordingly, deserves to be set aside.” 15.4. In SHAN Vs. THE SECRETARY TO GOVERNMENT OF TAMIL NADU, HOME, PROHIBITION AND EXCISE DEPARTMENT (2011 (2) CTC 142), this Court had held as follows: “7. As could be seen above, the order of detention came to be passed on 23.8.2010 terming the detenu as a https://hcservices.ecourts.gov.in/hcservices/ 6 “Bootlegger”, on the strength of the materials placed before him pertaining to three Adverse cases and a Ground case as referred above. The Detaining Authority has also recorded the subjective satisfaction. Before sustaining the order, the Court, has to necessarily look into whether subjective satisfaction so recorded by the Detaining Authority was based on necessary materials as required. Insofar as the first ground is concerned, the acknowledgment card and the copy of the pre-detention representation dated 19.8.2010 were perused by the learned Additional Public Prosecutor and in his reply, the learned Additional Public Prosecutor would submit that though, the pre-detention representation is dated 19.8.2010 and the same was received on 20.8.2010, but, the same was placed before the authority only on 26.8.2010. But, the said contention cannot be countenanced for the reason that, the pre-detention representation was made on 19.8.2010 and the same was received on 20.8.2010, which is evident from the acknowledgment card produced before this Court and thus, it would be indicative of the fact that the pre-detention representation was not considered by the authority, though, it was available at the time of passing the detention order on 23.8.2010. On this ground, the detention order is vitiated and it has got to be set aside. 8. Apart from that, as could be seen from page Nos.29,33,75 and 101 of the Booklet, there are lot of discrepancies found in the translation made. Particularly, on a perusal of the remand extension order annexed to page No.101 of the booklet, it is seen that the name of the Accused is not even mentioned therein. Under such circumstances, a clarification should have been called for from the Sponsoring Authority by the Detaining Authority, but, he had not done so. Under such circumstances, on this ground also, the detention order is vitiated and it has got to be set aside.” 16. It has been further stated that, in paragraph 5 of the grounds of detention, the Detaining Authority had stated that the detenu had filed a bail application before the Judicial Magistrate Court No.III, Madurai, in crime No.524 of 2011, in Cr.M.P.No.6459 of 2011. It had also been stated that the said bail application filed on behalf of the detenu had been dismissed, on 7.10.2011. It had also been stated that, in the case registered in Madurai Civil Supplies CID unit, in Crime No.453 of 2011, against Saravanakumar and Dilipkumar, bail orders had been granted by the Judicial Magistrate Court No.III, Madurai, by an order, dated 25.8.2011, made in Cr.M.P.No.5714 of 2011. Therefore, the Detaining Authority had stated that the detenu was likely to come out on bail in the case, in Crime No.524 of 2011, as bail orders had been granted in such cases, by the Court concerned or by the higher courts after a lapse of time. However, all the relevant documents relating to the case, in crime No.453 of 2011, had not been furnished to the detenu. Further, sufficient and cogent materials were not available before the Detaining Authority to arrive at such a conclusion, while passing the detention order. https://hcservices.ecourts.gov.in/hcservices/ 7 17. A detailed counter affidavit has been filed on behalf of the first respondent denying the averments and allegations made by the petitioner, in the affidavit filed in support of the Habeas Corpus Petition. 18. The learned Additional Public Prosecutor appearing on behalf of the respondents had submitted that the Habeas Corpus Petition, filed on behalf of the detenu, is premature in nature. He had submitted that the Habeas Corpus Petition has been filed even before the order of detention, passed by the Detaining Authority, had been considered by the Advisory Board. Therefore, it is liable to be dismissed. He had relied on the decision of the Kerala High Court, in R.P.Goyal Vs. State, AIR 1974 Kerala 85 (V 61 C 24), wherein, it has been held that the protection envisaged by the Constitution of an Advisory Board, for looking into the defects in the passing of an order of detention, is a substantial protection. Normally,therefore, before the order has become final, on the application of mind relating to the question of existence or otherwise of the grounds justifying the detention, by the State Government, and the Advisory Board expressing its opinion, as to whether there is sufficient cause for such detention, it should not be interfered with by the High Court, as it should not deal with the question on insufficient material. 19. The learned counsel appearing on behalf of the respondents had stated that the detention order, dated 8.10.2011, passed by the first respondent, is valid in the eye of law. The first respondent had followed all the necessary procedural formalities prescribed by law, while passing the detention order. He had also submitted that all the relevant documents, based on which the detention order had been passed, had been furnished to the detenu. 20. It had also been stated that there was a likelihood of the detenu coming out on bail in the case, in Crime No.524 of 2011, pending on the file of the Judicial Magistrate Court No.III, Madurai, as bail orders had been granted in similar cases in Crime No.453 of 2011. He had also submitted that the Detaining Authority had arrived at his subjective satisfaction, while passing the detention order, based on the records available before him. 21. The learned counsel appearing on behalf of the respondents had relied on the decision of the Supreme Court, in A.Geetha Vs. State of Tamilnadu (CDJ 2006 SC 702), wherein, it had been held that the only requirement is that the Detaining Authority should be aware that the detenu is already in custody and that he is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse-dixit of the Detaining Authority. It would be sufficient if the Detaining Authority came to the conclusion, by his subjective satisfaction, based on the relevant materials. Normally, such satisfaction is not to be interfered with. As such, the Habeas Corpus Petition filed by the petitioner is devoid of merits and therefore, it is liable to be dismissed. 22. 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, and in view of the decisions cited supra, this Court is of the considered view that there was no proper https://hcservices.ecourts.gov.in/hcservices/ 8 application of mind, by the Detaining Authority, in passing the impugned detention order against the detenu. 23. The Detaining Authority had not stated that there was an imminent or a real possibility of the detenu, who is in custody, coming out on bail and indulging in activities prejudicial to the maintenance of the public order. 24. The learned counsel appearing on behalf of the respondents had not been in a position to explain, clearly, as to how the case, in Crime No.453 of 2011, is similar in nature to the case, in crime No.524 of 2011. In Rekha Vs. State of Tamilnadu (2011(5) SCC 244), it has been held that the personal liberty of a person is protected, under Article 21 of the Constitution of India. As it is so sacrosanct and so high in the scale of constitutional values, there is an obligation on the part of the Detaining Authority to show that, while passing the impugned order of detention, the procedures established by law have been meticulously followed. The procedural safe guards are required to be zealously watched and enforced by the Courts of law and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. 25. The cases compared should be similar in all the aspects as per the decision cited supra. Further, even though the Detaining Authority had stated that there was a compelling necessity to detain the detenu, in order to prevent him from indulging in activities, which would be prejudicial to the maintenance of public order, no cogent materials were available on record to substantiate such a claim. 26. 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. 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. 26.1) In Velumurgan @ Velu Vs. The Commissioner of Police (2005(1) CTC 577), it had been held as follows: “3…… unless there is a clear expression by the detaining authority in the grounds of detention with reference to the imminent possibility of the detenu being released on bail by filing bail application, the detaining authority would not choose to pass the detention order. In order to prevent the detenu from committing the acts, which would be disturbance to public order and public health, the detaining authority shall consider the materials and on the basis of subjective satisfaction that there is imminent possibility of the detenu coming out on bail or likelihood of the detenu being released on bail, the detaining authority may pass such an https://hcservices.ecourts.gov.in/hcservices/ 9 order under Tamil Nadu Act 14 of 1982. When such an essential requirement, namely, the imminent possibility of the detenu coming out on bail, is absent, it has to be held that the order of detention is vitiated.” 26.2) In Kasthuri Vs. The District Collector and D.M., Kancheepuram (2009(1) MWN (Cr.) 418 (DB), this Court had set aside the detention order passed against the detenu stating that the Detaining