Thilagaveni vs State of Tamil Nadu

M. Chockalingam, J.—This petition for issuance of a writ of habeas corpus challenges an order of the second Respondent dated 6.9.2010,

made in Cr.M.P. No. 02/2010(CS) whereby the husband of the Petitioner by name Raj alias Govindaraj was ordered to be detained under the

provisions of the Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, branding him as a black marketeer.

The Court looked into all the materials available and in particular, the order under challenge and heard the learned Counsel for the Petitioner.

It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the Petitioner''s husband Raj alias Govindaraj

was involved in two adverse cases namely (1) Erode District, Chennimalai Police Station Cr. No. 244/2010 u/s 6(4) of TNSC (RDCS) Order

1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 and (2) Pollachi Civil Supplies Criminal Investigation Department Crime No.

398/2010 u/s 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act 1955 and also he was found in possession

of 60 bags of PDS rice each containing 50 kgs., on 22.8.2010, and consequent upon the seizure made, a case in Crime No. 434/2010 was

registered by Civil Supplies Criminal Investigation Department, Pollachi, u/s 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential

Commodities Act 1955, the detaining authority on scrutiny of the entire materials recorded its subjective satisfaction that the activities of the detenu

were prejudicial to the maintenance of supplies of commodities essential to the community, and hence made the order under challenge branding him

as a black marketeer.

The learned Counsel while advancing arguments on behalf of the Petitioner raised the following two grounds which, according to him, would

suffice to set aside the order.

(i) The ground case was actually registered on 22.8.2010, pursuant to the seizure of 60 bags of PDS rice from the detenu by the Civil Supplies

Criminal Investigation Department, Pollachi, in Crime No. 434/2010, and he has also moved for bail before the Judicial Magistrate No. IV,

Coimbatore, in Crl. M.P. No. 2541/2010, and the same was dismissed on 30.8.2010. While the matter stood thus, the order came to be passed

on 6.9.2010, stating that there was a real possibility of the detenu coming out on bail which was without material, much less cogent material.

(ii) While the case came to be registered in Crime No. 434/2010 on 22.8.2010,as could be seen from the grounds of detention, in page No. 52 of

the booklet which contained the remand report, the date of the registration of the FIR is shown as19.3.2010. Under the circumstances, naturally a

clarification should have been called for since it was a document relied upon by the authority, but it was not done so. Thus it would be quite clear

that the detaining authority has recorded its subjective satisfaction even without asking for a clarification as to the same.

The Court heard the learned Additional Public Prosecutor for the State and also the learned Counsel for the third Respondent on all the above

contentions and paid its anxious consideration on the submissions made.

As could be seen above, the detaining authority after recording its subjective satisfaction that the activities of the detenu were prejudicial to the

maintenance of supplies of commodities essential to the community, has made the order under challenge. As regards the first ground, the ground

case was registered on 22.8.2010, in Crime No. 434/2010. It is an admitted position that he moved a bail application before the Judicial

Magistrate No. IV, Coimbatore, in the ground case, and the same was dismissed on 30.8.2010. While so, the impugned order came to be passed

on 6.9.2010. But, the authority has stated in the grounds of detention that there was a real possibility of the detenu coming out on bail which is

without material, much less cogent material which the law would require. Under the circumstances, the order has become defective.

Insofar as the second ground urged by the Petitioner''s Counsel, while the ground case was registered on 22.8.2010, the remand report as

found in page 52 of the booklet, would indicate the date of registration of the case as 19.3.2010. It remains to be stated that it was also a relied

upon document. In such circumstances, a clarification should have been called for by the detaining authority, but failed to do so. Thus, it would be

indicative of the fact that the authority has arrived at the subjective satisfaction even without calling for a clarification in that regard. This Court is of

the considered opinion that on both the grounds, the order has got to be set aside.

Accordingly, this petition is allowed setting aside the order of detention passed by the second Respondent. The detenu is directed to be set at

liberty forthwith unless his presence is required in connection with any other case.