Madras High Court
A. Farook vs The Secretary To Government, Food And ... on 19 September, 2006
Author: P. Sathasivam
Bench: P. Sathasivam, S. Tamilvanan
ORDER P. Sathasivam, J.
1. The petitioner, who is the brother of the detenu, by name Khaja Moideen @ Khaja, who is detained as a "Balck Marketeer" as contemplated under Section 3(2)(b) read with 3(1) of the prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, by the impugned detention order dated 15.07.2006, challenges the same in this Petition.
2. Heard learned Counsel for the petitioner as well as learned Additional Public Prosecutor for the respondents.
3. At the foremost, learned Counsel for the petitioner, by drawing our attention to the averments in paragraph 6 of the grounds of detention, has submitted that though the detaining authority was very well aware of the fact of the pendency of the bail application, while arriving imminent possibility, he has mechanically observed that "there is a real possibility of the detenu being coming out on bail by filing another bail application in future...", which shows non application of mind on his part and hence, the detention order has to be quashed
4. In the light of the above submission, we have verified para 6 of the grounds of detention. The relevant portion reads as under.
I am aware that Thiru.Khaja Moideen @ Khaja was remanded to judicial custody in this case on 06.07.2006 and that he is still in Central Prison, Coimbatore, as a remand prisoner. I am aware that the bail petition filed on behalf of him before the Judicial Magistrate No. VII, Coimbatore in CMP No. 4681/2006 has posted for hearing on 17.07.2006. I am also aware that there is a real possibility of his coming out on bail by filing another bail application in future since in similar cases the concerned court or Higher Courts grants bail after lapse of time.
5. As rightly pointed out by the learned Counsel for the petitioner, the detaining authority was very well aware that the bail application had been filed before the Judicial Magistrate No. VII, Coimbatore in CMP No.4681/2006 and the same was posted for hearing on 17.07.2006. The detention order was passed by him on 15.07.2006. While passing the detention order and considering the question of imminent possibility, though the detaining authority was very well aware that the bail application of the detenu is pending and comes up for hearing on 17.07.2006, without reference to the said relevant aspect, has observed that there is a real possibility of his coming out on bail by filing another bail application in future. As pointed out earlier, so long as the CMP No.4681 of 2006 is pending before the Judicial Magistrate No. VII. Coimbatore, there is no question of granting bail by filing another bail application. The detaining authority has failed to take note of the said relevant aspect and arrived at a conclusion mechanically in respect of imminent possibility of coming out on bail. 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.
6. Accordingly, the Habeas Corpus Petition is allowed and the impugned order of detention is set aside. The detenu is directed to be set at liberty forthwith from the custody unless he is required in some other case or cause.