IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.06.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.NO.207 OF 2008 Sumathi .. Petitioner Vs. 1.The State of Tamilnadu, rep. by its Secretary to Government and Consumer Protection Department, Fort St George, Chennai-600 009. 2.The District Collector and District Magistrate, Coimbatore District, Coimbatore. .. Respondents This habeas corpus petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of habeas corpus to call for the entire records leading to the detention of the petitioner's brother, namely Saravanan, son of Duraipandian, detained under Act 7/1980, vide detention order dated 28.01.2008 on the file of the second respondent herein made in Cr.M.P.No.1/B.M./2008(E4), to quash the same and consequently, to direct the respondents herein to produce the body and person of the said detenu before the court and set him at liberty from Central Prison, Coimbatore. For Petitioner : Mr.M.Venkadeshan For Respondents: Mr.Babu Muthu Meeran, APP https://hcservices.ecourts.gov.in/hcservices/ ORDER (The order of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of the second respondent made in Cr.M.P.No.1/B.M/2008(E4), dated 28.01.2008, branding one Saravanan, the brother of the petitioner, as Black Marketeer and detaining him under the provisions of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 7 of 1980). 2.The Court heard the learned counsel for the petitioner and also the learned counsel for the State. The affidavit filed in support of the petition and also the counter affidavit are also perused. 3.Concededly, on the strength of one adverse case in Crime No.828 of 2007 registered by Coimbatore Civil Supplies Criminal Investigation Department and a ground case registered in Crime No.31 of 2008 on 11.1.2008 and also the other materials, the Detaining Authority recorded a finding that the activities of the detenu Saravanan were prejudicial to the maintenance of supplies of Commodities Essential to the community and hence he was to be termed as Black Marketeer and also in order to prevent him from indulging in such activities, dealing with essential commodities as he has smuggled Kerosene for disposal at higher rates, he was to be detained under the said provisions and hence he made the order of detention, which is the subject matter of challenge before this court. 4.Assailing the order under challenge, the learned counsel for the petitioner, in his sincere attempt, would submit that the order is an outcome of a thorough non application of mind. As could be seen from the order, the detenu has filed a bail application before the Judicial Magistrate, Avinashi in Crl.M.P.No.315 of 2008 and the same was also posted for hearing on 29.01.2008, but the Detaining Authority has pointed out in its order that it was very likely that he may come out on bail by filing a bail application before the same or Higher Court and that in similar cases, the concerned Court or Higher Courts grants bail after a lapse of some time. The learned counsel placing reliance of the decision of this court reported in 2007-2-L.W.(Crl.) 843 (Arunachalam vs. The State of Tamil Nadu and another), would submit that once bail application was filed and it was also pending and the Authority without considering the same has pointed out that there was possibility of coming out on bail by filing another bail application, it would indicate the non application of mind. 5.The learned counsel would further add that page 4 of the order under challenge would reveal that the sample of kerosene was sent to Indian Oil Corporation Ltd., Chennai for tests and the report received from the testing laboratory of Indian Oil Corporation, Korukkupet, Chennai revealed that the samples taken for quality analysis confirmed that it matches with the Public Distribution https://hcservices.ecourts.gov.in/hcservices/ System kerosene. The learned counsel took the court to the report of analysis as found in page 45 of the Booklet and submit that it does not reveal anything either to state or to indicate that the quality analysis confirmed that it matches with public distribution system kerosene and hence the order of the Authority as if the report reads so was not correct. Under these circumstances, it canot be termed as material for the purpose of coming to subjective satisfaction and hence the order under challenge has got to be set aside. 6.The Court heard the learned counsel for the respondents on the above contentions and has paid its anxious consideration on the submissions made. 7.It is not in controversy that pursuant to the registration of two cases one in Crime No.828 of 2007 and the other in Crime No.31 of 2008 in respect of the incidents that took place on 06.11.2007 and 11.01.2008 respectively, 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, was of the opinion that the detenu was to be branded as Black Marketeer and has passed the order under challenge. As rightly pointed out by the learned counsel for the petitioner, the order of detention reads that a bail application was filed by him in Crl.M.P.No.315/2008 before the Judicial Magistrate, Avinashi and the same was also pending during the relevant time, but the Authority has pointed out that there was possibility of his coming out on bail by filing a bail application before the said court or Higher court. Thus, it would clearly reveal that the Authority has meant that there was possibility of filing another bail application. While the first bail application was pending before the Judicial Magistrate and even the disposal of the bail application was not known at that time, stating that there was all possibility of the detenu coming out on bail by making another bail application was nothing, but non application of mind. Under these circumstances, the decision of this Court, as referred to above, has got an application and the same has got to be accepted accordingly. Hence it is a fit ground, on which the order under challenge has got to be set aside. 8.Further, in the instant case, as rightly pointed out by the learned counsel for the petitioner, page 45 of the booklet contains the analysis report. But, nowhere it states that the sample which was placed for analysis would match the public distribution kerosene or it was public distribution system kerosene. As rightly pointed out by the learned counsel for the petitioner, while the analysis report does not speak so, the Authority has placed the same as the material for coming to the conclusion. So long as the analysis report does not speak about that fact, the court is afraid as to which formed basis for arriving at subjective satisfaction or coming to such a conclusion. Under these circumstances, the above grounds are in favour of the petitioner to quash the order under challenge. https://hcservices.ecourts.gov.in/hcservices/ 9.Accordingly, the detention order is set side. The Habeas Corpus petition is allowed. 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 To 1.The Secretary to Government and Consumer Protection Department, The State of Tamilnadu, Fort St George, Chennai-600 009. 2.The District Collector and District Magistrate, Coimbatore District, Coimbatore. 3.The Additional Public Prosecutor, High Court, Madras. 4.The Superintendent , Central Prison, Coimbatore. 5.The Joint Secretary to Government Public Law & Order Fort St George, Chennai-600 009 1 CC To Mr. M. Ajmal Khan, Advocate, SR NO.33269 H.C.P.NO.207 OF 2008 ssv(co) pmk/14.7.08 https://hcservices.ecourts.gov.in/hcservices/