1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.04.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Habeas Corpus Petition (MD) No.151 of 2011 Dhanalakshmi, W/o.N.Ganesan ... Petitioner vs. 1.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. 2.The Secretary, Government of Tamil Nadu,, Co-operation, Food and Consumer Protection Department, Secretariat, Chennai-9. 3.The commissioner of Police, Tiruchirappalli District, Tiruchirappalli. 4.The Inspector of Police, Civil Supplies C.I.D., Tiruchirappalli. ... Respondents Prayer: This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to issue a writ of habeas corpus calling for the records pertaining to the order of detention passed by the 3rd respondent in his proceedings C.P.O./T.C/I.S./B.M/D.O.No.07/2010, dated 14.12.2010, quashing the same as illegal and consequently setting the detenu by name N.Ganesan, son of Narasimhan, now confined in Central Prison, Trichy, at liberty. For Petitioner : Mr.RA.S.Anandaraj For Respondents : Mr.M.Daniel Manoharan, 2 to 4 Addl.Public Prosecutor. For Respondent-1 : Mr.V.Duraipandian, Panel counsel for Government of India. https://hcservices.ecourts.gov.in/hcservices/ 2 O R D E R (Order of the Court was made by G.M.AKBAR ALI,J.) The petitioner, who is the wife of the detenu, has filed this petition challenging the order of detention, dated 14.12.2010, clamped by the 3rd respondent under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act 7 of 1980), on the detenu branding him as a "Black Marketeer" and directing him to be detained at the Central Prison, Tiruchirappalli. 2. Learned counsel appearing for the petitioner, in assailing the impugned order of detention, mainly contended that when the detenu has not filed any bail application in the 2nd adverse case and the bail application filed by him in the ground case in Cr.No.738/2010 is pending consideration by the competent Criminal Court, the subjective satisfaction recorded by the detaining authority as to the possibility of the detenu coming out on bail in both the cases and indulge in future activities which would be prejudicial to the maintenance of Public Distribution System was not based any material, much less cogent material and it was mere ipse dixit of the detaining authority and therefore on this ground the impugned order is liable to be set aside. In support of his contention, the learned counsel relied on the judgment of a Division Bench of this Court in Rajamanickam v. District Collector & District Magistrate, reported in (2010) 3 MLJ (Crl) 473. He further submitted that when the bail application filed by the detenu in the ground case is pending consideration by the competent criminal court, the detaining authority has pre-judged the issue as if bail would be granted to him in the ground case and this would amount to non- application of on the part of the detaining authority and the same would also vitiate the order of detention. 3. On the other hand, the learned Additional Public Prosecutor submitted that taking into account the bail granted to the detenu in a similar case, that is in the 1st adverse case, and also after considering all the materials placed before him, the detaining authority has recorded his subjective satisfaction as to the possibility of the detenu coming out on bail and the is based on materials and therefore there is nothing to interfere with the same. 4. We have heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor for the respondents and gave our anxious consideration. 5. It is by now well settled that in all detention laws, the orders of detention and its continuance should be in conformity with Article 22 of the Constitution of India and even a slightest infraction of the constitutional protection enshrined therein would be a valid ground to set the detenu at liberty. Therefore, there must be cogent materials before the Authority passing the detention order for inferring that the detenu was likely to be released on bail. This inference must be drawn from materials on record and must not be ipse dixit of the Authority passing the detention order. https://hcservices.ecourts.gov.in/hcservices/ 3 6. In A.Shanthi v. Government of Tamil Nadu - [(2006) 9 SCC 711] cited supra, the Hon'ble Supreme Court has held as follows: "4. In similar circumstances, this Court in T.V.Saravanan v. State - [(2006) 2 SCC 664], directed release of the detenu. Counsel for the State is unable to distinguish that judgment. this Court in T.V.Saravanan has held that the "imminent possibility" of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. the inference has to be drawn from the available material on record. In the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention." 7. In the decision relied on by the learned counsel for the petitioner cited supra - (2010) 3 MLJ (crl) 476, the Division Bench has held as follows: "10. In the instant case, before recording its subjective satisfaction, the Authority has not stated any of these expressions. Apart from that, no material, much less cogent material was available for the authority to mention so. In such circumstances, the Court is of the considered opinion that it was only an impression in the mind of the Authority, which would not be suffice to pass the detention order. On this ground, the detention orders under challenge have got to be set aside." 8. In the case of person in custody a detention order can validly be passed if the authority passing the order is aware of the fact that he is actually in custody; if he has reason to believe on the basis of reliable material placed before him (a) that there is real possibility of his being released on bail, and (b) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording its satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such oppositions to question it before a higher court. https://hcservices.ecourts.gov.in/hcservices/ 4 9. Therefore the imminent possibility or real possibility of the detenu coming out on bail is to the subjective satisfaction of the detaining authority and not on mere ipse dixit. 10. That being the legal position, in the present case, when the bail application filed by the detenu in the ground case is pending consideration by the competent criminal court and further when no bail application at all was filed in the 2nd adverse case, the Detaining Authority, without any material, much less cogent materials, has recorded his subjective satisfaction as to the possibility of the detenu coming out on bail on mere ipse dixit and clamped the order of detention. To appreciate the ground raised by the learned counsel for the petitioner, it is better to extract the relevant portion in the grounds of detention which relates to the subjective satisfaction arrived at by the detaining authority and it reads as under: "5. I am aware that N.Ganesan is in remand in Tiruchirappalli Civil Supplies CID., Cr.Nos.732/10 and 738/10. He has filed a bail application before the Judicial Magistrate No.VI, Tiruchirappalli vide Cr.M.P.No.3012/10 for Cr.No.738/10 and which is pending. He has not filed a bail application for Cr.No.732/10 so far. In the adverse case i.e. in CSCCID., Cr.No.390/08, he filed a bail application and he was released on bail. From this, I draw the inference that he is very likely to be released on bail in CSCID., Cr.No.738/10, and there is also a possibility of coming out on bail in Cr.No.732/10. If he comes out on bail, he will indulge in future activities which will be prejudicial to the maintenance of the Public Distribution System. ..." 11. In such circumstances, the subjective satisfaction arrived at by the detaining authority as to the possibility of the detenu coming out on bail both in the ground case as well as in the adverse case is not based on any materials as held by the Hon'ble Supreme Court as well as by this Court in the decisions cited supra. Therefore, we are of the considered view that the impugned detention order has been passed mechanically and without application of mind and as such the detention order, dated 14.12.2010, is vitiated. 12. Further, when the bail application filed by the detenu in the ground case is subjudice, the detaining authority, in paragraph 5 of the grounds of detention appended to the order of detention and extracted as above, has stated that the detenu was very likely to be released on bail in the ground case. Thus the detaining authority has prejudged the issue and we are of the view that pre-determining the verdict of the Court would amount to non-application of mind on the part of the detaining authority. Therefore, on that ground also, the order of detention is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 5 13. Accordingly, the habeas corpus petition is allowed and the impugned order of detention, dated 14.12.2010, passed by the 3rd respondent in his proceedings CPO/TC/IS/BM/D.No.07/2010, is quashed. The detenu is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar To: 1.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. 2.The Secretary to Government, Co-operation, Food and Consumer Protection Department, Secretariat, Fort St.George, Chennai-600 009. 3.The commissioner of Police, Tiruchirappalli District, Tiruchirappalli. 4.The Inspector of Police, Civil Supplies C.I.D., Tiruchirappalli. 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 6.The Superintendent, Central Prison, Trichy. 7.The Joint Secretary to Government, Public (Law & Order), Fort Saint George, Chennai – 9. Order in H.C.P.(MD)No.151 of 2011 Dated: 25.04.2011 gb NSV/16.6.11/5P/8C https://hcservices.ecourts.gov.in/hcservices/