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2014 DIGILAW 267 (MAD)

A. Rajendran v. State of Tamil Nadu

2014-02-05

P.N.PRAKASH, S.RAJESWARAN

body2014
Judgment S. Rajeswaran, J. 1. Challenge is made to the order of detention passed by the second respondent vide Proceedings in C.M.P.No.40/Black Marketeer/Salem City/2013 dated 23.09.2013 whereby the petitioner by name A. Rajendran, was ordered to be detained under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Central Act 7 of 1980) branding her as a “BLACK MARKETEER”. 2. As per the grounds of detention dated 23.09.2013, passed by the second respondent, the detenu came to adverse notice in the following case: Ground Case: Sl.No. Name of the Police station and Crime No. Section of law 1 Pollachi Civil Supplies Criminal 6(4) of TNSC (RDCS) Order Investigation Department Crime No. 1982 read with 7(1)(a)(ii) of 176/2013 dated 18.05.2013 Essential Commodities Act, 1955 Ground Case: Sl.No. Name of the Police station and Crime No. Section of law 1 Pollachi Civil Supplies Criminal 6(4) of TNSC (RDCS) Order Investigation Department Crime 1982 read with 7(1)(a)(ii) of No.266/2013 Essential Commodities Act, 1955 3. Though many grounds have been raised in the petition, Mr. D. Shivakumaran, the learned counsel appearing for the petitioner, confines his argument only in respect of non-application of mind on the part of the detaining authority in passing the order of detention. 4. According to the learned counsel appearing for the petitioner, the detenu has been in remand in the ground case in Cr.No.338/2013 registered by Salem Civil Supplies CID and the bail application filed in the ground case by the detenu in CMP.No.5043/2013 was dismissed by the learned Judicial Magistrate No.2, Salem, on 17.09.2013 and the second bail petition filed before the same Court in C.M.P.No.5266/2013 is pending. While so, the Detaining Authority has arrived at the subjective satisfaction that there is real possibility of the detenu coming out on bail in the ground case, by relying upon the similar case registered by Salem Civil Supplies CID Cr.No.259/2012 for offences u/s.6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of Essential Commodities Act, 1955, wherein bail was granted to the accused by name M. Balaji by the learned Judicial Magistrate No.2, Salem, in CMP.No.5132/2012 on 30.08.2012. The learned counsel would add that admittedly, in this case, the first bail application filed by the detenu in the ground case was dismissed and the second bail application filed by him is also pending and he is in remand in the said case. The learned counsel would add that admittedly, in this case, the first bail application filed by the detenu in the ground case was dismissed and the second bail application filed by him is also pending and he is in remand in the said case. When a bail application has already been dismissed and the second bail application is pending before the Court, there is no presumption that the detenu would come out on bail. No cogent materials are available before the Detaining Authority to conclude/to apprehend that the detenu is likely to get bail in the ground case. The particulars of the similar case referred to and relied upon by the detaining authority where bail is granted, is not that of the co-accused though the offences are same, so as to compare that case with that of the detenu. Therefore, there is no imminent possibility of the detenu coming out on bail in the ground case on the basis of the bail granted in the similar case. Hence, it is stated that the Detaining Authority has passed the impugned detention order in total non-application of mind and the subjective satisfaction arrived at by the Detaining Authority that there is real possibility of the detenu coming out on bail is a mere ipse dixit without any cogent materials. In support of his contention, he relies on the judgments of the Hon’ble Apex Court reported in (a) 2006 (1) MLJ (Crl.) 539, (T.V. Saravanan @ S.A.R. Prasanna Venkatachariar Chaturvedi v. State of Tamilnadu through Secretary and another); (b) 2005 (1) CTC 577 (Velmurugan @ Velu vs. The Commissioner of Police) and (c) 2012 (7) SCC 181 (Huidrom Konungjao Singh vs. State of Manipur). 5. Per contra, the learned Senior Central Government Standing Counsel appearing for the 5th respondent and the learned Additional Public Prosecutor appearing for the respondents 1 to 2 would submit that the order of detention has been passed on cogent and sufficient materials and the same cannot be interfered with at the instance of the petitioner. Therefore, they submit that the Habeas Corpus Petition does not merit any consideration and the same is liable to be dismissed. 6. We have heard the learned counsel for both sides with regard to the facts and citation. 7. Therefore, they submit that the Habeas Corpus Petition does not merit any consideration and the same is liable to be dismissed. 6. We have heard the learned counsel for both sides with regard to the facts and citation. 7. Before adverting to the arguments of the counsel for both sides, we would like to reproduce the relevant portion of the grounds of the detention order, viz., paragraph 5, on which much reliance has been placed by the learned counsel appearing for the petitioner: “5. I am aware that Thiru A. Rajendran is in remand for the case of Salem Civil Supplies CID Unit Cr.No.338/2013 u/s. 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of E.C. Act. The bail application dated 6.9.2013 filed on behalf of him before the Judicial Magistrate No.2, Salem was dismissed in CMP.No.5043/2013, 17.9.2013. I am aware that, the bail petition dated 18.9.2013 filed again on behalf of him for the above said case before the Judicial Magistrate No.2, Salem Court in C.M.P. No. 5266/2013 is pending. In a similar case registered at CSCID, Salem Unit Cr.No.259/2012, under section 6(4) of TNSC (RDCS) Order 1982 read with 7(1)(a)(ii) of E.C. Act, 1955 bail was granted to the accused Tr.M.Balaji by the Judicial Magistrate No.2 Court, Salem vide C.M.P.No.5132/2012, dt.30.08.2012. Hence, I infer that it is very likely of Thiru A. Rajendran coming out on bail in the above case. If Thiru A. Rajendran (Cr.No.338/2013) comes out on bail, he will indulge in such further activities, which will be prejudicial to the maintenance of supplies of commodities essential to the community. ……” 8. As could be seen from the above ground in the order of detention, the detenu is in remand in the ground case (Cr.No.338/2013) and the first bail application filed by him for the ground case in CMP.No.5043/2013 on the file of the learned Judicial Magistrate Court No.2, Salem, was dismissed vide order dated 17.09.2013. The second bail application filed in C.M.P.No.5266 of 2013 before the same Court is pending. When the first bail application was dismissed and the second bail application is pending, then there is no real possibility that the detenu would come out on bail. The second bail application filed in C.M.P.No.5266 of 2013 before the same Court is pending. When the first bail application was dismissed and the second bail application is pending, then there is no real possibility that the detenu would come out on bail. Therefore, the subjective satisfaction arrived at by the detaining authority that there is real possibility of his coming out on bail in the ground case, would be a mere ipse dixit and that would vitiate the order of detention and the same is indicative of total non-application of mind on the part of the Detaining Authority. Further, the similar case particulars referred to and relied upon by the Detaining Authority, is not that of the co-accused of the detenu so as to compare and to arrive at the subjective satisfaction. Hence, the order of detention is vitiated and the same cannot be sustained in the eye of law and is liable to be set aside. 9. In this connection it is useful to refer the judgment of the Hon’ble Apex Court relied on by the learned counsel for the petitioner. (a) In 2006 (1) MLJ (Crl.) 539, (T.V. Saravanan @ S.A.R. Prasanna Venkatachariar Chaturvedi v. State of Tamilnadu Through Secretary and another), wherein the Hon’ble Apex Court has held as follows: “The Courts had rejected the bail applications moved by the appellant and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The “imminent possibility” of the appellant coming out on bail is mere 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.” (b) In 2005 (1) CTC 577 (Velmurugan @ Velu vs. The Commissioner of Police), it has been held as follows: “3. ….. 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.” (b) In 2005 (1) CTC 577 (Velmurugan @ Velu vs. The Commissioner of Police), it has been held as follows: “3. ….. unless there is clear expression by the detaining authority in the grounds of detention with reference to the imminent possibility of the detenu being released on bail by filing bail application, the detaining authority would not choose to pass the detention order. In order to prevent the detenu from committing the acts, which would be disturbance to public order and public health, the detaining authority shall consider the materials and on the basis of subjective satisfaction that there is imminent possibility of the detenu coming out on bail or likelihood of the detenu being released on bail, the detaining authority may pass such an order under Tamil Nadu Act 14 of 1982. When such an essential requirement, namely, the imminent possibility of the detenu coming out on bail, is absent, it has to be held that the order of detention is vitiated.” (c) In 2012 (7) SCC 181 (cited supra) which reads thus:- 12. In Rekha v. State of Tamil Nadu through Secretary to Govt. camp; Anr., (2011 (5) SCC 544), this Court while dealing with the issue held: “ …… In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail…… A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored…. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground.” (emphasis supplied) Thus, it is evident from the aforesaid judgment that it is not the similar case, i.e. involving similar offence. It should be that the co-accused in the same offence is enlarged on bail and on the basis of which the detenu could be enlarged on bail. 14. In the instant case, admittedly, the said bail orders do not relate to the co-accused in the same case. The accused released in those cases on bail had no concern with the present case. Merely, because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail. Thus, as the detenu in the instant case has not moved the bail application and no other co-accused, if any, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eyes of law.” 10. It is a trite law that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of Constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Preventive detention is preventive and no punitive. When ordinary law of the land is sufficient to deal with, taking recourse to the preventive detention law is illegal. 11. Preventive detention is preventive and no punitive. When ordinary law of the land is sufficient to deal with, taking recourse to the preventive detention law is illegal. 11. In the light of the above facts and law, we have no hesitation in quashing the order of detention on the above mentioned grounds. 12. Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order in C.M.P.No.40/Black Marketeer/Salem City/2013 dated 23.09.2013 passed by the second respondent is set aside. The detenu, viz., A. Rajendran, S/o. Arumugam, aged 47 years, is directed to be released forthwith unless his presence is required in connection with any other case.