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2013 DIGILAW 1228 (MAD)

Susila v. Secretary to Government Chennai

2013-03-05

M.JAICHANDREN, M.M.SUNDRESH

body2013
JUDGMENT M. Jaichandren, J. 1. This Habeas Corpus Petition has been filed to call for the records relating to the order of the second respondent, dated 16.11.2012, made in C.M.P.No.14/PBMMSEC Act/2012(F3), and quash the same, and to produce the detenu, namely, Arumugam, son of Rajendran, aged about 34 years, confined in the Central Prison, Salem, before this Court and to set him at liberty. 2. The petitioner is the wife of the detenu, R. Arumugam, son of Rajendran, who has been detained, under Section 3(1), read with 3(2)(a) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, pursuant to the order passed by the second respondent in his proceedings, in C.M.P.No.14/PBMMSEC Act/2012(F3), dated 16.11.2012. In view of the detention order passed by the second respondent, dated 16.11.2012, the detenu had been lodged in the Central Prison, Salem, terming him as a 'Black Marketeer'. 3. Even though various grounds had been raised in the Habeas Corpus Petition filed by the petitioner, the learned counsel appearing on behalf of the petitioner had placed emphasis on the grounds mentioned hereunder, while stating that the impugned detention order passed by the Detaining Authority is bad in the eye of law. He had submitted that there was clear non-application of mind, on the part of the Detaining Authority, while passing the detention order against the detenu. 4. The learned counsel appearing on behalf of the petitioner had referred to Paragraph5 of the grounds of detention, which reads as follows: "5. I am aware that Thiru. R. Arumugam who was arrested on 3.11.2012 in connection with the case in Salem Civil Supplies CID Unit Cr.No.395/2012 u/s 6(4) of TNSC (RDCS) Order, 1982, r/w 7(1)(a)(ii) of E.C. Act, 1955 has been confined at Central Prison, Salem till 17.11.2012 under judicial custody as per the orders of the Judicial Magistrate No.1 incharge Judicial Magistrate No.2 Namakkal. Further he has filed bail application in connection with the above criminal case before the Court of the Judicial Magistrate Court No.2 Namakkal vide CMP No.5659 of 2012 and the same is pending for disposal. In a similar case registered at CSCID, Salem Unit Cr.No.818/2011 under Section 6(4) of TNSC (RDCS) Order, 1982 r/w 7(1)(a)(ii) of E.C. Act, 1955, bail was granted to the accused Tr. Allimuthu on 28.8.2011 by the Judicial Magistrate No.II, Namakkal vide Crl.M.P.No.2026/2011 dated 07.09.2011. In a similar case registered at CSCID, Salem Unit Cr.No.818/2011 under Section 6(4) of TNSC (RDCS) Order, 1982 r/w 7(1)(a)(ii) of E.C. Act, 1955, bail was granted to the accused Tr. Allimuthu on 28.8.2011 by the Judicial Magistrate No.II, Namakkal vide Crl.M.P.No.2026/2011 dated 07.09.2011. Further, in an another case in Salem Unit Civil Supplies CID Cr.No.154/2012 u/s 6(4) of TNSC (RDECS) Order 1982 r/w 7(1)a(ii) of E.C. Act 1955 the accused Thiru Subramani was granted anticipatory bail by the High Court, Madras vide order in CMP 12885/2012 dated 6.6.2012. Hence, I infer that it is very likely of his (Thiru. R. Arumugam) coming out on bail in Salem CSCID, Unit Cr.No.395/202 under Section 6(4) of TNSC (RDCS) Order, 1982 r/w 7(1)(a)(ii) of E.C. Act, 1955. If her (Thiru. R. Arumugam) comes out on bail, he will certainly indulge in such further activities, which will be prejudicial to the maintenance of supplies of commodities essential to the community. Further, recourse to normal criminal law will not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of supplies of commodities essential to the community. On the materials placed before me, I am fully satisfied that the said Thiru. R. Arumugam is a Black Marketeer and there is a compelling necessity to detain him in order to prevent him from indulging in such further activities in future, which are prejudicial to the maintenance of supplies of commodities essential to the community under the provisions of Section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 7 of 1980)." 5. In paragraph-5 of the grounds of detention the Detaining Authority had stated that the detenu had filed a bail petition in connection with the case in Salem Civil Supplies CID Unit Crime No.395 of 2012, under Section 6(4) of TNSC (RDCS) Order, 1982, read with 7(1)(a)(ii) of Essential Commodities Act, 1955, before the court of the Judicial Magistrate No.II, Namakkal, vide C.M.P.No.5659 of 2012 and the same is pending disposal. The Detaining Authority had further stated that, in a similar case registered at CSCID, Salem Unit Crime No.818 of 2011, under Section 6(4) of TNSC (RDCS) Order, 1982, read with 7(1)(a)(ii) of the Essential Commodities Act, 1955, bail had been granted to the accused Allimuthu, by the Judicial Magistrate No.II, Namakkal, in Crl.M.P.No.2026 of 2011, by an order, dated 7.9.2011. The Detaining Authority had further stated that in another case in Salem Unit Civil Supplies CID Crime No.154 of 2012, under Section 6(4) of TNSC (RDCS) Order, 1982, read with 7(1)(a)(ii) of Essential Commodities Act, 1955, the accused Subramani, had been granted anticipatory bail, by the High Court of Madras, vide order, dated 6.6.2012, in C.M.P.No.12885 of 2012. Therefore, the Detaining Authority had inferred that there was a real likelihood of the detenu coming out on bail in Salem CSCID, Unit Crime No.395 of 2012, under Section 6(4) of TNSC (RDCS), 1982, read with 7(1)(a)(ii) of Essential Commodities Act, 1955. He had also stated that if the detenu comes out on bail he would indulge in further activities which would be prejudicial to the maintenance of supplies of commodities essential to the community. 6. The main contention of the learned counsel appearing on behalf of the petitioner is that the Detaining Authority concerned had not furnished all the necessary records relating to the similar case registered in Crime No.818 of 2011, on the file of CSCID, Salem Unit, wherein bail had been granted to the accused, by an order, dated 7.9.2011, made in Crl.M.P.No.2026 of 2011, by the Judicial Magistrate No.II, Namakkal, and the case in Salem Unit Civil Supplies CID Crime No.154 of 2012, wherein, the accused had been granted anticipatory bail by the High Court of Madras, by its order, dated 6.6.2012, made in C.M.P.No.12885 of 2012. Hence, the detenu had been prevented from making an effective representation against the impugned detention order passed by the Detaining Authority. 7. Per contra, the learned counsels appearing on behalf of the respondents had submitted that the detention order had been passed by the Detaining Authority after arriving at the subjective satisfaction, based on the cogent materials available before him. He had further submitted that the order of detention passed by the detaining authority do not suffer from non-application of mind, by the said authority. 8. He had further submitted that the order of detention passed by the detaining authority do not suffer from non-application of mind, by the said authority. 8. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents and on a perusal of the records available, it is noted that the Detaining Authority had passed the impugned detention order, dated 16.11.2012, stating that bail had been granted in similar cases, in favour of the accused, in Crime No.818 of 2011, on the file of CSCID, Salem Unit, by the Judicial Magistrate No.II, Namakkal, in Crl.M.P.No.2026 of 2011. It had been further stated that anticipatory bail had been granted by the High Court of Madras, in the case in Salem Unit Civil supplies CID Crime No.154 of 2012, by its order, dated 6.6.2012, made in C.M.P.No.12885 of 2012 and therefore, there is likelihood of the detenu coming out on bail in Salem CSCID Unit Crime No.395 of 2012 and indulging in activities prejudicial to the maintenance of supplies of commodities essential to the community. 9. The learned counsel appearing on behalf of the second respondent Detaining Authority had not placed before this court the relevant records to refute the claims made by the learned counsel appearing on behalf of the petitioner. Even though the learned counsel appearing on behalf of the second respondent had stated that a copy of the order passed by the High Court of Madras, dated 6.6.2012, in C.M.P.No.12885 of 2012 and the F.I.R. copy relating to Crime No.154 of 2012 had been furnished to the detenu, he had not been in a position to show that all the relevant records relating to the similar cases, referred to by the Detaining Authority, had been furnished to the detenu. As such, it is clear that the detenu had not been given sufficient opportunity to make an effective representation against the impugned detention order, dated 16.11.2012. The failure on the part of the Detaining Authority to furnish all the relevant materials would have, without doubt, caused substantial prejudice to the detenu, resulting in the failure on the part of the Detaining Authority in following the mandate enshrined in Clause (5) of Article 22 of the Constitution of India. Hence, this Court finds it appropriate to quash the impugned detention order, dated 16.11.2012. Hence, this Court finds it appropriate to quash the impugned detention order, dated 16.11.2012. Accordingly, the impugned detention order passed by the second respondent is quashed, and the Habeas Corpus petition stands allowed. The detenu is directed to be set at liberty, forthwith, unless his detention is required in connection with any other case or cause.