R.MALA,J.
In this Habeas Corpus Petition, the Petitioner - wife of the Detenu, challenges the order of detention clamped on the Detenu by the 3rd Respondent, branding him as a "Goonda", under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (in short "Tamil Nadu Act 14/1982).
2. Consequent upon the recommendations made by the Sponsoring Authority that the Detenu was involved in two adverse cases, as detailed below, 1 C.S.C.I.D., Uthamapalayam Police U/s.6(4) of TNSC (RDCS) order 1982, Station Cr.No.627/2008 r/w 7 (i) a (ii) of EC Act 1955 2 C.S.C.I.D., Uthamapalayam Police U/s.6(4) of TNSC (DDCS) order 1982, Station Cr.No45/2009 r/w 7 (i) a (ii) of EC Act 1955 and in one ground case in Crime No.47/2009 under Section 6(4) of TNSC (DDCS) order 1982 r/w 7 (i) (a) (ii) of EC Act 1955 on the file of C.S.C.I.D., Police Station, Uthamapalayam. The Detaining Authority, on being satisfied that the Detenu is habitually committing grave crime and is also acting in a manner prejudicial to the maintenance of public order and branding him as a "Goonda", as contemplated under the Tamil Nadu Act 14/1982, and if the Detenu comes out on bail he will indulge in future activities, which will be prejudicial to the maintenance of public order, passed the impugned order of detention.
3. Even though several contentions were raised and argued as well, learned counsel for the Petitioner mainly confined his arguments to the aspect of non-application of mind by the detaining authority while passing the detention order. When the detenu was branded as a Black Marketeer, he is facing two adverse case and one ground case. In ground case in crime No.47 of 2009 has been registered on 20.03.2009 and arrested and produced before the learned Judicial Magistrate, Uthamapalayam on 21.03.2009 and remanded till 03.04.2009. In the second adverse case, the occurrence had taken place on 14.03.2009 and case was registered in Crime No.45 of 2009 under Section (4) of TNSC (DDCS) order 1982, r/w 7 (i) a (ii) of EC Act 1955. In this case also, the accused was produced before the same Magistrate on 21.03.2009 and remanded till 03.04.2009. But, in grounds of detention, in Paragraph 3, it was stated as follows: "The accused was produced in the Judicial Magistrate Court, Theni on 21.03.2009 and remanded till 03.04.2009. Again he was produced before judicial Magistrate, Theni on 03.04.2009 and his remand was extended till 27.04.2009 and lodged at Uthamaplayam Sub Jail. The case is under investigation." But, in the booklet, no remand extension report was enclosed. So, how the sponsoring authority had prejudged that on 03.04.2009, the detenu will be produced and the remand period will be extended till 17.04.2009. It is pre- determination only.
4. It is the duty of the detaining authority that if there is any inconsistencies in the materials placed before him, he ought to have obtained clarification from the sponsoring authority. But, here, no clarification has been obtained. Hence, the detaining authority has not applied his mind while endorse his subjective satisfaction based on cogent materials. In the above such circumstances, he prayed for quashing the detention order.
5. The learned Public Prosecutor has urged that the detaining authority has considered all the materials and come to the conclusion to the subjective satisfaction based on the cogent materials and passed the detention order, there is no irregularity or infirmity in the impugned order and he prayed for the dismissal.
6. On considering the arguments of both sides counsel and perusal of records, the sponsoring authority has filed his affidavit on 31.03.2009, wherein he has stated as follows:
"The accused was produced in the Judicial Magistrate Court, Theni on 21.03.2009 and remanded till 03.04.2009. Again he was produced before judicial Magistrate, Theni on 03.04.2009 and his remand was extended till 27.04.2009 and lodged at Uthamaplayam Sub Jail. The case is under investigation." Considering the above statement, how the sponsoring authority could know that the accused would be produced on 03.04.2009 and remand period will be extended upto 17.04.2009 on 31.03.2009 itself. But, when the matter has been placed before the detaining authority, if the detaining authority has really perused entire documents, he would have come across the vital mistake committed by the sponsoring authority. The detention order has been passed on 03.04.2009. But, there is no evidence to show that the detaining authority called for a clarification regarding the inconsistency in the averments in his affidavit.
7. It is pertinent to note that in page No.131 of the booklet, the ground case in Crime No.47/2009 under Section 6(4) of TNSC (DDCS) order 1982 r/w 7 (i) (a) (ii) of EC Act 1955 on the file of C.S.C.I.D., Police Station, Uthamapalayam, at the time of remand, the learned Judicial Magistrate, Uthamapalayam has mentioned as follows:
"The accused produced at 2.00 P.M. No complaints against police. The reason for arrest explained to him. Remanded to custody till 03.04.2009." In Page No.77 of the booklet, one ground case in Crime No.45/2009 under Section 6(4) of TNSC (RDCS) order 1982 r/w 7 (i) (a) (ii) of EC Act 1955 on the file of C.S.C.I.D., Police Station, Uthamapalayam, at the time of remand, the learned Judicial Magistrate, Uthamapalayam has mentioned as follows: "The accused produced at 2.00 P.M. No complaints against police. The reason for arrest explained to him. Remanded to custody till 03.04.2009." But, there is no document to show that the remand has been extended from 03.04.2009 to 17.04.2009.
8. While perusing the entire materials, there is nothing to show that the detaining authority has obtained clarification from the sponsoring authority to show further remand extension of the detenu was done on 03.04.2009. It is pre-determination and pre-judged minds of the sponsoring authority and non application minds of the detaining authority.
9.The learned counsel for the petitioner would draw our attention to the decision reported in (2007)1 MLJ (Crl) 967 (K.Raja @Sahaya Arokia Darmaraj Vs. State of Tamil Nadu, rep. by Secretary to Government, Prohibition and Excise Department, Chennai and Another) and culled out the following portion:
"The detention order passed passed by the detaining authority on factually incorrect particulars furnished by the sponsoring authority and even without clarifying the position from the sponsoring authority is liable to be quashed."
We agree with the ratio decidendi laid down in the above citation and the same is squarely applicable to the facts of the present case.
10. The detailing authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order, but, even so, if the detaining authority is reasonably satisfied on account of cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging an activity prejudicial to the maintenance and supplies of Essential Commodities to the community, the order can be validly made even in anticipation to operate on his release. So, the detaining authority has not applyied his mind in respect of the remand extension. Since the sponsoring authority filed an incorrect affidavit, in the absence of any material, it cannot be said that the subjective satisfaction was based upon cogent materials, which in our considered view, would have the effect of vitiating the detention order.
11. Accordingly, the Habeas Corpus Petition is allowed and the impugned order of detention in H.S.(M)Confdl.No.56/08, dated 23.11.2008, passed by the 2nd Respondent,, is quashed. The Detenu Murugan @ Pottumurugan is directed to be released forthwith, unless his presence is required, in accordance with law, in connection with any other case.
arul To:
1.The Additional Secretary, Government of India, Ministry of Consumer affairs, Food and Public Distribution (Department of consumer affairs) Room No.270, Krishi Bhavan, New Delhi - 110 001.
2.The Secretary, Government of Tamilnadu, Co-operation, Food and Consumer Protection Department, Secratariat, Channai - 9.
3.The District Collector and District Magisatrate, Theni District, Theni.
4.The Inspector of Police, CS.CID, Uthamapalayam, Theni District.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.