(Order of the Court was made by M.CHOCKALINGAM,J) Challenge is made to an order of the second respondent in C.No.02/PBMMSEC.Act/18/2009 dated 16.03.2009 whereby the husband of the petitioner namely P.T.Murugesan was ordered to be detained under the provisions of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 branding him as a black marketeer.
2. The affidavit in support of the petition along with all the materials including the order under challenge are perused. The Court heard the learned Counsel for the petitioner.
3. It is not in controversy that pursuant to the registration of the ground case in Crime No. 101/2009 under Section 5(1), 17(1), 3(1) and 3(5) of the Tamil Nadu Kerosene (Regulation of Trade) Order 1973 r/w 7(1)(a)(ii) of Essential Commodities Act 1955 on the ground that 15 barrels of kerosene each weighing 200 litres, kept in a vehicle without permit, in total 3000 litres of blue colour Public Distribution System kerosene were found in possession of the detenu, the sponsoring Authority made a recommendation before the detaining Authority and the detaining Authority in turn after scrutiny of the materials available recorded its subjective satisfaction that the activities of the detenu were in a manner prejudicial to the public distribution system and hence in order to prevent him from indulging in such activities, an order of detention has got to be made under the provisions of the Act, and accordingly made the order which is the subject matter of challenge in this petition.
4. Advancing the argument on behalf of the petitioner the learned counsel would submit that the order under challenge came to be made on 16.3.2009. According to the authorities, 3000 litres of kerosene in 15 barrels each containing 200 litres were found on 8.3.2009. Two representations were made on 20.3.2009, one to the detaining authority which was received on 21.3.2009 and the other to the Central Government which was received on 23.3.2009 but in so far as these two representations are concerned, they were not considered yet. Under such circumstances, the non-consideration of the representations made to the Detaining Authority and the Central Government even after a lapse of 3 = months would be suffice to set aside the order of detention.
5. Added further learned counsel, the bail application filed before the Judicial Magistrate No.IV, Coimbatore in Crl.M.P.No.318 of 2009 was dismissed on 14.3.2009. While the matter stood thus, the authority has stated in the order which came to be passed on 16.3.2009 that there was real possibility of the detenue coming out on bail which is due to non-application of mind on the part of the authority. Hence, the detention order has got to be set aside.
6. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
7. After scrutiny of the materials available and hearing the submission made on either side, the Court is of the considered opinion that the order has got to set aside on the grounds that the order came to be passed on 16.3.2009 pursuant to the case registered in Crime No.101 of 2009 on 8.3.2009 when the detenu was found in possession of 3000 litres of kerosene illegally meant for Public Distribution System and the recommendation made by the Sponsoring Authority. As could be seen from the acknowledgement placed in the hands of the Court, two representations were made on 20.3.2009 one to the detaining authority and the other to the Central Government and the same were received on 21.3.2009 and 23.3.2009 respectively. Even after lapse number of months, no reply was actually sent and there was nothing to indicate that those representations were actually considered and orders were passed. The non-consideration of both the representations even at this point of time would be suffice to set aside the order.
8. Secondly, as rightly pointed out by the learned counsel for the petitioner, the Court is able to notice non-application of mind on the part of the authority. The order came to be passed on 16.3.2009 but even before that, i.e., on 14.3.2009, bail application filed before the Judicial Magistrate No.IV, Coimbatore in Crl.M.P.No.318 of 2009 and was dismissed on 14.3.2009. Thus, on the day when the order came to be passed no bail application was pending and the statement found in the order that there was real possibility of the detenu coming out on bail was actually without any basis. It is only an expression of apprehension in the mind of the authority. Under these circumstances, this Court is of the considered opinion that the order suffers from infirmity and it is liable to be set aside.
9. Accordingly, this habeas corpus petition is allowed setting aside the order of the second respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.
Vsi To
1.The Secretary to Government,, Cooperatiion,Food and Consumer Protection Dept., Fort St.George, Chennai.
2. The Commissioner of Police, Detaining Authority,Coimbatore City.
3. The Secretary to Government, Food and Consumer Protection Department, Ministry of Consumer Affairs Public Distribution, Government of India, New Delhi