IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.07.2009 CORAM: THE HON'BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON'BLE MR.JUSTICE C.S.KARNAN HCP.NO.741 OF 2009 Mathina Begum ..Petitioner/Wife of the detenue Vs. 1. The Secretary to Government,, Cooperatiion, Food and Consumer Protection Dept., Secretariat, Chennai – 600 009. 2. The District Magistrate and District Collector, Coimbatore. 3. The Secretary to Government, Food and Consumer Protection Department, Government of India, New Delhi. ..Respondents Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus calling for the entire records in connection with the order of detention passed by the second respondent dated 28.3.2009 in Cr.M.P.No.6/B.M./2009 (E4) against the petitioner's husband Abdul Rahuman @ Rahim son of Maitheen aged about 36 years and confined at Central Prison, Coimbatore and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty. For Petitioner : Mr.V.Parthiban For Respondents 1 & 2: Mr.N.R.Elango Additional Public Prosecutor For Respondent 3 : Mr.M.Devendran,SPCCG. https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by M.CHOCKALINGAM,J) Challenge is made to an order of detention made on 28.3.2009 by the second respondent whereby the petitioner's husband Abdul Rahuman @ Rahim son of Maitheen was ordered to be detained under the provisions of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 along with the Rules therein branding him as a Black Marketeer. 2. The affidavit in support of the application along with the grounds of attack and the entire materials placed along with the order under challenge are perused. The Court heard the learned counsel appearing on either side. 3. Admittedly, pursuant to the recommendations made by the Sponsoring Authority that the said detenu was involved in 5 adverse cases (1) Registered by Pollachi Civil Supplies Criminal Investigation Department in Crime No.459 of 2006 dated 22.9.2006 under section 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of the Essential Commodities Act 1955 for smuggling 54 bags of boiled rice and 11 bags of raw rice meant for Public Distribution System weighing 50 kgs each to Kerala State (2) Registered by Pollachi East Police Station in Crime No.531/2007 dated 14.8.2007 under section 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of the Essential Commodities Act 1955 for smuggling 117 bags of Public Distribution System boiled rice weighing 50 kgs each to Kerala State; (3) Registered by Pollachi Civil Supplies Criminal Investigation Department in Crime No.743 of 2008 dated 18.10.2008 under section 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of the Essential Commodities Act 1955 for smuggling 4 bags of Public Distribution System boiled rice weighing 50 kgs each to Kerala State; (4) Registered by Pollachi Civil Supplies Criminal Investigation Department in Crime No.778 of 2008 dated 21.11.2008 under section 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of the Essential Commodities Act 1955 for smuggling 90 bags of Public Distribution System boiled rice weighing 50 kgs each to Kerala State and (5) Registered by Pollachi Civil Supplies Criminal Investigation Department in Crime No.47 of 2009 dated 10.2.2009 under section 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of the Essential Commodities Act 1955 for smuggling 30 bags of Public Distribution System weighing 50 kgs each to Kerala State and also a ground case in Crime No.81/2009 registered by the Civil Supplies CID, Pollachi, on 20.3.2009 that he was found in possession of 40 bags each containing 50 kgs of PDS rice. The detaining authority, after looking into the materials available and after recording its 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 https://hcservices.ecourts.gov.in/hcservices/ necessary to make the order of detention, made the order accordingly, which is the subject matter of challenge before this Court. 4. Advancing the argument on behalf of the petitioner, the learned counsel would submit that the detenu was actually remanded to judicial custody on the last adverse case and on the ground case on 20.3.2009 and it is also the fact which could be seen from the available detention order that no bail application was actually filed. Under such circumstances, it is noted in the order that the detaining authority has pointed out that there was real possibility of the detenu coming out on bail by filing a bail application before the Court which was not only without cogent materials but also without applying its mind and the observations made by the detaining authority was pre-mature while no bail application was pending in any one of the cases and making such observation and passing such an order, cannot be sustained and hence, it has got to be set aside. 5. Added further, learned counsel that in the remand report, it is stated that the detenu was history sheeted rowdy and this fact should have been condemned when all the materials placed before the detaining authority, this point would weigh the mind of the authority in one way or the other. When the representation was made by the detenu calling for particulars to be furnished by the Sponsoring Authority, they were not furnished to him at all. Under such circumstances, since the relied on documents were not furnished it would also affect the order and hence, the order under challenge has got to be set aside. 6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 7. As pointed out above, pursuant to the recommendations made that the detenu has involved in 5 adverse cases and one ground case, the sponsoring authority placed all materials to the detaining authority which impelled the detaining authority recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of Public Distribution System and in order to prevent him from indulging from such activities in future such an order has become necessary and hence, passed an order of detention. As rightly pointed out by the learned counsel for the petitioner, in paragraph 5 of the detention order it is read as follows. " I am aware that he has not moved any bail application before any court. There is a real possibility of his coming out on bail by filing a bail application before the Court. " https://hcservices.ecourts.gov.in/hcservices/ 8. From a reading of this paragraph of the order, it would indicate that this observation that, there is a real possibility of the detenu coming out on bail, cannot be recorded without materials, that too, without cogent materials available in the hands of the detaining authority. No cogent materials were actually placed before the detaining authority. In the instant case, the learned counsel appearing for the State would submit that when bail applications were filed, ordinarily, in a normal case, bail could be granted, that too, after lapse of time. Such observation made by the authority cannot be said to be incorrect. Under such circumstances, recording so cannot be found to be defective. 9. In a given case subjective satisfaction was recorded even without any material whatsoever. The Honourable Apex Court in a decision reported in 2006 AIR SCW 4648 (Senthamilselvi v. State of Tamil Nadu) wherein at paragraph 10, it is held as follows: "It was also submitted that since the detenu had not filed any bail application, the detaining authority could not have inferred that there was possibility of his being released on bail. Strong reliance is placed on several decisions of this Court. It has to be noted that whether prayer for bail would be accepted depends on circumstances of each case and no hard and fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and 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. On the basis of materials before him, the detaining authority came to the conclusion that there is likelihood of detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be inferred with. On the facts of the case, the detaining authority has indicated as to why he was of the opinion that there is likelihood of detenu being released on bail. It has been clearly stated that in similar cases orders granting bail are passed by various courts. Appellant has not disputed correctness of this statement. Strong reliance was placed by learned counsel for the appellant on Rajesh Gulati v. Govt. of NCT of Delhi and Another ((2002) 7 SCC 129). The factual scenario in that case was entirely different. In fact, five bail applications filed had been already rejected. In that background this Court observed that it was not "normal" case. The High Court was justified in rejecting the stand of the appellant." https://hcservices.ecourts.gov.in/hcservices/ 10. From a perusal of the above decision, it is quite clear that before subjective satisfaction, there must be materials and such satisfaction is to be inferred with. In the instant case, it was done by the detaining authority without materials and it cannot be inferred that such inference cannot be a basis for making such observation or recording such satisfaction. Under such circumstances, that part of the order is infirm and defective. 11. So far as the second ground is concerned, the Court is unable to agree with the learned counsel for the petitioner. It was mentioned in the remand report that the detenu was history sheeted rowdy. The contention putforth by the learned counsel for the petitioner is that if it is mentioned so in the remand report those materials should have been placed before the detaining authority and the detaining authority, in turn, should have considered the same in one way or the other, cannot be countenanced. A perusal of the order under challenge did not reflect any material which was placed before the authorities impelled the authorities to make such statement. Therefore, the second ground raised by the learned counsel for the petitioner do not carry any merit whatsoever and the same is liable to be rejected, accordingly rejected. 12. The Court, on being satisfied with the first ground raised by the learned counsel for the petitioner, is of the opinion that it would be suffice to set aside the order of detention. Accordingly, this habeas corpus petition is allowed setting aside the order of the second respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar Vsi To 1. THE SECRETARY TO GOVERNMENT CO-OPERATION FOOD AND CONSUMER PROTECTION DEPARTMENT, SECRETARIAT, CHENNAI 9 2. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, COIMBATORE. https://hcservices.ecourts.gov.in/hcservices/ 3. THE SECRETARY TO GOVERNMENT FOOD AND CONSUMER PROTECTION DEPARTMENT GOVERNMENT OF INDIA NEW DELHI. 4. THE SUPERINTENDENT CENTRAL PRISON, COIMBATORE. 5. THE JOINT SECRETARY TO GOVERNMENT PUBLIC (LAW & ORDER) FORT ST. GEORGE, CHENNAI-9. 6. THE PUBLIC PROSECUTOR HIGH COURT, MADRAS. + 1 c.c. to Mr. M. Devendran, Advocate. S.R.No.32394. + 1 c.c. to Mr. V. Parthiban, Advocate. S.R.No.31712. H.C.P.No.741 of 2009 BKY (CO) GSK 29.07.2009. https://hcservices.ecourts.gov.in/hcservices/