IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.2.2008
CORAM
THE HON'BLE MR.JUSTICE P.D.DINAKARAN
AND
THE HON'BLE MR.JUSTICE R.REGUPATHI
Habeas Corpus Petition No.1745 of 2007
Gopal .. Petitioner
vs.
1. State of Tamil Nadu
rep. by its Secretary to Government
Co-operation, Food and Consumer
Protection Department
Chennai 600 009.
2. The District Collector and
District Magistrate
Salem District
Salem.
3. Union of India
rep. by its Secretary to Government
Food and Consumer Protection Department
Ministry of Consumer Affairs Public
Distribution, Government of India
New Delhi. .. Respondents
Petition under Article 226 of the Constitution of India praying for a Writ of Habeas Corpus as stated therein.
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For Petitioner : Mrs.R.Subadra Devi
For Respondents1&2 : Mr.N.R.Elango
Additional Public Prosecutor
Mr.P.Kumaresan, ACGSC -R3
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O R D E R
(Made by P.D.DINAKARAN,J.)
The petitioner, who is the brother of the detenu, Selvam, who was detained at Central Prison, Salem, pursuant to the order of detention dated 29.11.2007 passed under Section 3(2)(a) read with 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, (Central Act 7 of 1980) branding him as ‘Black Marketeer’, has filed this writ petition for issue of a Writ of Habeas Corpus to call for the records in connection with the order of detention dated 29.11.2007 passed by the second respondent in C.M.P.No.12/P.B.M.S.E.C. Act/J3/2007, to set aside the same and to direct the respondents to produce the above said detenu before this Court and set him at liberty.
2. According to the detaining authority, viz., the second respondent, the ground case is said to have taken place on 23.11.2007. On receipt of credible information that the provisions of Essential Commodities Act, 1955, are being violated or may be violated, the Inspector of Police, CSCID, along with his police party conducted a surprise check in Kondalampatti P.Nattamangalam Road, Salem. On seeing the police party, the detenu tried to escape, but was caught by the police. They found 110 bags consisting of 50 kgs of ration rice stored in thorn bush. During interrogation, the detenu gave a voluntary statement admitting the offence, on the basis of which a case was registered in Salem CSCID Cr.No.740/07 under Section 6(4) of TNSC (RDCS) Order 1982 read with Section 7(1)a(ii) of Essential Commodities Act, 1955. The detenu was sent for judicial remand.
3. The second respondent, taking note of the five adverse cases of alike nature in Crime Nos.276/2006, 400/2006 and 452/2007 on the file of Civil Supplies CID, Salem and having satisfied that the activities of the detenu are prejudicial to the maintenance of supplies of essential commodities, under the Public Distribution System, passed the detention order under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, branding him as ‘Black Marketeer’. Hence, the present petition.
4. We have heard the learned counsel appearing for both sides and perused the materials available on record.
5. The learned counsel for the petitioner challenges the impugned order of detention on the ground of non application of mind on the part of the detaining authority, as he has observed in the grounds of detention that the detenu has not moved any bail application with regard to the ground case in Crime No.740 of 2007 and that there is real possibility of coming out of bail by filing bail application before the same Court or higher courts, when the fact remains that the detenu was granted bail by order of the learned Judicial Magistrate No.V, Salem, in C.M.P.No.9064 of 2007, dated 29.11.2007.
6. Concededly, in the grounds of detention, it is observed that the detenu is in remand in ground case and has not moved any bail application and that there is real possibility of his coming out on bail by filing bail application. The fact remains that the detenu has moved bail application in C.M.P.No.9064 of 2007 before the learned Judicial Magistrate No.V, Salem and the learned Judge granted bail by order dated 29.11.2007 i.e. on the date of detention. But, the detaining authority has not taken into consideration the bail granted in favour of the detenu while passing the impugned detention order.
7. The non application of mind on the part of the detaining authority in not considering the bail order granted in favour of the detenu vitiates the impugned order of detention.
For the aforesaid reason, we are inclined to allow this petition. The order of detention dated 29.11.2007 is quashed. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.
ATR
To
1. The Secretary to Government
State of Tamil Nadu
Co-operation, Food and Consumer
Protection Department
Chennai 600 009.
2. The District Collector and
District Magistrate
Salem District
Salem.
3. The Secretary to Government
Union of India
Food and Consumer Protection Department
Ministry of Consumer Affairs Public
Distribution, Government of India
New Delhi.
4. The Superintendent
Central Prison, Salem.
5. The Public Prosecutor
High Court,
Madras.