1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.3.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI H.C.P.(MD) No.63 of 2011 Jacklin .. Petitioner vs. 1.Incharge Commissioner of Police, Trichirapalli City, Trichirapalli. 2.The State rep. by The Secretary to Government, Food, Co-operation and Consumer Protection Department, Secretariat, Chennai – 9. 3.The Secretary, Government of India, Food, Co-operation and Consumer Protection Department, Ministry of Consumer Affairs Food and Public Distribution System, New Delhi – 110 001. 4.The Inspector of Police, Civil Supplies CID, Tiruchirappalli District. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to direct the respondents herein to produce the detenu Krishnan, son of Ganesan, who has been termed as "Black Marketer" who is now confined in Central Prison, Trichy and call for records in C.P.O./T.C./I.S./B.M./D.O.No.08/2010 dated 29.12.2010 passed by the 1st respondent herein and set aside the same and set the detenu at liberty. https://hcservices.ecourts.gov.in/hcservices/ 2 For petitioner : Mr.T.Senthil Kumar for M/s.T.A.Omprakash For respondents- 1, 2 & 4 : Mr.M.Daniel Manoharan, Addl.Public Prosecutor For 3rd respondent :Mr.N.S.Ponniah Senior Panel Counsel ORDER (Order of the Court was made by G.M.AKBAR ALI, J) This Habeas Corpus Petition challenges an Order of Detention of the first respondent made in C.P.O./T.C./I.S./B.M./D.O.No.08/2010 dated 29.12.2010 whereby the husband of the petitioner, by name, G.Krishnan, was ordered to be detained under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act No.7 of 1980) branding him as a “Black Marketeer”. 2. Challenging the order of detention, the only point raised before this Court by Mr.T.Senthil Kumar, learned counsel appearing for the petitioner, is that though the detenue was released on bail in the first adverse case and second adverse case viz., Crime Nos.122/09 and 365/10 respectively, the bail applications filed in the third adverse case and ground case viz., 788/2010 and 796/2010 respectively, were dismissed while the detenu was in remand. However, the detaining authority has observed in the detention order that there is a real possibility of his coming out on bail by filing bail application. This observation is without any material and it is only the ipse dixit of the detaining authority unsupported by any material whatsoever and hence, the order of detention is liable to be set aside. 3. Per contra, learned Additional Public Prosecutor would submit that the detaining authority has considered the dismissal of the bail applications in the third adverse case and ground case viz., 788/2010 and 796/2010 respectively, and therefore formed an opinion that there is a real possibility of the detenu coming out on bail by filing another bail application and therefore, the detaining authority has applied his mind and also referred the cogent material and passed the order. 4. We have carefully considered the rival submissions and also the records. 5. It is seen in Paragraph No.5 of the order of detention that- "I am aware that Krishnan is in remand in Tiruchirappalli, Civil Supplies CID., Cr.Nos.788/10 and 796/10. He has filed bail applications before the https://hcservices.ecourts.gov.in/hcservices/ 3 Judicial Magistrate No.VI, Tiruchirappalli vide Cr.M.P.No.3260/10 and 3261/10 for Cr.NOS.788/10 and 796/10 respectively and they were dismissed. In the adverse cases i.e. in CS CID Cr.Nos.122/09 and 365/10, he filed bail applications and he was released on bail. From this I draw the inference that there is a real possibility of him coming out on bail in CS CID Cr.Nos.788/10 & 796/10 by filing bail application..." 6. Though the detenue was released on bail in the first adverse case and second adverse case viz., Crime Nos.122/09 and 365/10 respectively, the bail applications filed in the third adverse case and ground case viz., 788/2010 and 796/2010 respectively were dismissed while the detenu was in remand. However, the detaining authority has observed in the detention order that there is a real possibility of his coming out on bail by filing bail application. This aspect has been dealt in Narcotic Control Bureau Vs. Raju Alias Natarajan [(2006) 9 Supreme Court Cases 711] wherein the Hon'ble Supreme Court has observed as follows:- "4. In similar circumstances, this Court in T.V.Saravanan v. State [(2006) 2 SCC 664] directed the 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 would 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. It is well settled that if there is no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that there is imminent or real possibility of the detenu coming out on bail, the detention order is vitiated and the mere ipse dixit of the detaining is not sufficient to sustain the order of detention. 8. The said judgment is squarely applicable to the facts of the present case. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that there is real possibility of the detenue coming out 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. Hence, the order of detention is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 4 9. Accordingly, the detention order in C.P.O./T.C./I.S./B.M./D.O.No.08/2010dated29.12.2010 passed by the 1st respondent is set aside and the Habeas Corpus Petition is allowed. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To 1.Incharge Commissioner of Police, Trichirapalli City, Trichirapalli. 2.The Secretary to Government, Food, Co-operation and Consumer Protection Department, Secretariat, Chennai – 9. 3.The Secretary, Government of India, Food, Co-operation and Consumer Protection Department, Ministry of Consumer Affairs Food and Public Distribution System, New Delhi – 110 001. 4.The Inspector of Police, Civil Supplies CID, Tiruchirappalli District. 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 St.George, Chennai 9. H.C.P.(MD)No.63 of 2011 24.03.2011 (asvm) SMA/12.4.2011/8C/4P https://hcservices.ecourts.gov.in/hcservices/