G. RAJESHWARI Vs. SECRETARY TO THE GOVERNMENT

JUDGEMENT

(1.) CHALLENGE is made to the order of detention passed by the third respondent vide Proceedings in C.M.P. No.1/Black Marketer/Salem City/2015 dated 07.03.2015, whereby the husband of the petitioner, by name P.Gopalakrishnan, son of Pandurangan, aged about 65 years, 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 7/1980) branding him as a "Black Marketeer".

(2.) THOUGH many grounds have been raised in the petition, Mr.S.Senthil Murugan, 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.

(3.) ACCORDING to the learned counsel appearing for the petitioner, the detenu has been in remand in the ground case [Cr.No.28/2015] registered by Salem Civil Supplies CID Unit and the bail application filed on behalf of him in the ground case before the learned Judicial Magistrate No.II, Salem in C.MP.No.1554/2015 was pending as on the date of the passing of the detention order. However, the Detaining Authority has arrived at the subjective satisfaction that there is real possibility of the detenu coming out on bail in the said cases by relying upon a similar case registered at CSCID, Salem Unit in Cr.No.259/2012 for the offences u/s.6(4) of TNSC (RDCS) Order 1982 r/w.7(1) a (ii) of E.C. Act 1955 wherein bail was granted to the accused Balaji by the learned Judicial Magistrate No.II, Salem in C.MP.No.5132/2012 dated 28.08.2012. The learned counsel would add that admittedly, in this case, the bail application filed by the detenu in the ground case was pending and he is in remand in the said case. When a bail application is pending, there is no presumption that he 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 and there is no imminent possibility of the detenu coming out on bail in the said case. The apprehension entertained in the mind of the detaining authority that there is a real possibility of detenu coming out on bail as the bail application in the ground case is pending is not justifiable for the reason that he has pre -judged the matter. Concedingly he could not foresee the nature of the order that would be passed by the Court. By the reason of pendency of the application, one could not easily come to the conclusion that the Court would certainly grant bail to the accused. 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 is likelihood of the detenu coming out on bail in the ground case 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] ; [c] 2012 [7] SCC 181 [HUIDROM KONUNGJAO SINGH VS. STATE OF MANIPUR] and [d] 2008 [3] MLJ (Crl.) 144 [S.ANDAL VS. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, MADURAI DISTRICT, MADURAI AND ANOTHER].