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.99 of 2011 Ajeem Nisha, W/o.K.Sarpudeen ... Petitioner vs. 1.State of Tamil Nadu, rep.by The Secretary to Government, Co-operation, Food and Consumer Protection Department, Secretariat, Fort St.George, Chennai-600 009. 2.The District Magistrate and District Collector, Dindigul District, Dindigul. 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. 4.The Superintendent of Prison, Madurai Central Prison, Madurai. ... 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 entire records connected with the detention order of Respondent No.2 in Detention Order No.1/2011 (CS), dated 31.01.2011, quashing the same and consequently setting the petitioner's husband by name K.Sarpudeen, S/o.Khadar Mohammed, aged about 43 years, now detained in the Central Prison, Madurai, at set him at liberty. https://hcservices.ecourts.gov.in/hcservices/ 2 For Petitioner : Mr.R.Venkatesan For Respondents : Mr.M.Daniel Manoharan, 1, 2 & 4 Addl.Public Prosecutor. For Respondent-3 : Mr.K.K.Senthilvelan, Asst.Solicitor General of India. 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 31.01.2011, clamped by the 2nd 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, Madurai. 2.Mr.R.Venkatesan, learned counsel for the petitioner, submitted that though many grounds have been raised in the petition, he confines his submission to the main ground that the Detaining Authority has failed to consider that there is no imminent possibility of the detenu to come out on bail. It is submitted that when it is admitted by the detaining authority himself that the bail applications filed by the detenu in the 3rd adverse case as well as in the ground case were dismissed and thereafter the detenu has not filed any bail application, the conclusion arrived at by the Detaining Authority that there is a real possibility of the detenu coming out on bail is mere ipse dixit of the detaining authority and without application of mind. In support of his submission, the learned counsel relied on the judgment of the Supreme Court in A.Shanthi v. Government of Tamil Nadu [(2006) 8 SCC 711]. 3.The learned Public Prosecutor would submit that the Detaining Authority has considered all the materials placed before him and after analysing the same, the detaining authority has formed his opinion as to the possibility of the detenu coming out on bail and therefore there is nothing to interfere with the order of detention. 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.The petitioner, who is the wife of the detenu, has come forward with this petition to set aside the detention order dated 03.01.2011. The main ground raised by the petitioner is that https://hcservices.ecourts.gov.in/hcservices/ 3 the Detaining Authority has passed the impugned order mechanically and without application of mind and there is no cogent material to come to the conclusion that there is a real possibility of the detenu coming out on bail. 6.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. In the decision relied on by the learned counsel for the petitioner [(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 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 and 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. 8.Therefore the imminent possibility or real possibility of the detenu coming out on bail is to the subjective https://hcservices.ecourts.gov.in/hcservices/ 4 satisfaction of the detaining authority and not on mere ipse dixit. 9.That being the legal position, in the present case, when the detenu has not filed any bail application after dismissal of the earlier bail applications, the Detaining Authority, without any material, much less cogent materials, has recorded his subjective satisfaction as to the real possibility of the detenu coming out on bail on mere ipse dixit and clamped the order of detention. In paragraph No.5 of the Grounds of Detention, the detaining authority has observed as follows: "(5)I am aware that Thiru.K.Sarpudeen is in remand at District Jail, Dindigul in connection with Dindigul Civil supplies Criminal Investigation Department Crime Nos.342/2010 and 21/2011. He has filed bail petitions in connection with Crime Nos.342/2010 and 21/2011 before the court of Judicial Magistrate No.III, Dindigul and the same were dismissed on 28.01.11 in Cr.M.P.No.355/2011 and Cr.M.P.No.356/2011 respectively. I am also aware that there is a real possibility of his coming out on bail by filing bail application before the same or higher court in the above case. In that event I trust that, it is very difficult to watch over his activities. ...." 10.As rightly pointed out by the learned counsel for the petitioner, the detenu has not filed bail applications in the above said cases after dismissal of earlier applications. In such circumstances, the subjective satisfaction arrived at by the detaining authority as to the real possibility of the detenu coming out on bail in both the cases is not based on any materials as held by the Hon'ble Supreme Court in the decision 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 31.01.2011, is vitiated. 11.Accordingly, the habeas corpus petition is allowed and the impugned order of detention, dated 31.01.2011, passed by the 2nd respondent in No.01/2011 (CS), is quashed. The detenu is directed to be set at liberty forthwith, unless his custody is required in connection with any other case. Sd/- Assistant Registrar(P&A) /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 5 To: 1.The Secretary to Government, Co-operation, Food and Consumer Protection Department, Secretariat, Fort St.George, Chennai-600 009. 2.The District Magistrate and District Collector, Dindigul District, Dindigul. 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. 4.The Superintendent of Prison, Madurai Central Prison, Madurai. 5.The Superintendent, District Jail, Dindiugl. 6.The Joint Secretary to Government, Public (Law and Order) Fort St.George, Chennai-9 7.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Order in H.C.P.(MD)No.99 of 2011 Dated:25.04.2011 gb SMA/10.6.2011/8C/5P https://hcservices.ecourts.gov.in/hcservices/