S ANDAL Vs. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR

JUDGEMENT

(1.) (Petition under Article 226 of the Constitution of India, praying for issuance of a writ of habeas corpus.) S. Palanivelu, J. The order of detention, dated 18.08.2007, passed by the first respondent vide C.M.P.No.3/2007(CS) against the detenu, namely, Soundarrajan, branding him as a Black Marketeer, is under challenge in this Habeas Corpus Petition, filed by the wife of detenu.

(2.) DETENU came to adverse notice of the police in a case in Crime No.457 of 2006, for the offence under Section 17 of Tamil Nadu Kerosene (R.T) 1973 read with 7 (1) (a) (ii) of The Essential Commodities Act,1955, on the file of Madurai Civil Supplies Criminal Investigation Department. It is stated therein, that, on 17.06.2006, the detenu, along with his associate, was found in possession of 3630 litres of kerosene, meant for Public Distribution System, with an intention to sell it at a higher price in black market and, as such, they were arrested and the contraband was also confiscated.

(3.) THE quintessence of the argument of the learned counsel for the petitioner is that the detaining authority, namely, first respondent had woefully failed to apply his mind at the time of passing the detention order and, therefore, the same got vitiated. According to him, Page 53 of the booklet produced by the learned Additional Public Prosecutor is a copy of the bail petition in Crl.M.P.No.3698 of 2007, which was filed by the detenu before the Judicial Magistrate No.V, Madurai, on 17.08.2007, and, on that day itself, the respondent police filed a petition, requesting the Court to adjourn the matter by four weeks for filing a written reply, since the Inspector of Police had gone out on other duty, however, on 18.08.2007, the petition was taken up by the said Court and the same suffered dismissal, with an observation to the following effect : "Heard both sides. Records and objection perused. Upon considering the nature of case, gravity of offence and stage of investigation, this Court has declined to allow the application. In the result, this petition is dismissed." THE learned counsel also produced a copy of the request filed by the police and the above said order passed on 18.08.2007 as well. He further placed reliance upon a Division Bench decision of this Court reported in Arunachalam v. State of Tamil Nadu, 2006 (2) MLJ (Crl) 1188, in which it has been observed as follows : "3....As rightly pointed out by the learned counsel for the petitioner, the detaining authority, having found that the bail application filed by the detenu is pending before the High Court, Chennai, in Crl.O.P.No.19569 of 2006, has arrived at a conclusion that it would be possible for the detenu to come out on bail by filing bail application before the concerned Court or higher Courts, which amply shows his non-application of mind in arriving imminent possibility of the detenu being coming out on bail. It is not in dispute that when the bail application filed earlier is still pending, unless the said petition is dismissed, the detenu cannot move another bail application. We are satisfied that the conclusion arrived at by the detaining authority cannot be sustained and the detention order is liable to be quashed on the ground of non-application of mind and accordingly, the same is quashed."