Madras High CourtSumathi vs The Secretary To The Government on 1 September, 2014Author:S.RajeswaranBench:S.Rajeswaran,P.N.PrakashIN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 01.09.2014

CORAM

THE HONOURABLE MR.JUSTICE S.RAJESWARAN
and
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
								
H.C.P.No.870/2014
Sumathi								..	Petitioner 
     
Vs

1.The Secretary to the Government,
   Government of Tamil Nadu
   Home, Prohibition and Excise Department
   Fort St George, Chennai-600 009.
2.The Commissioner of Police
   O/o.the Commissioner of Police
   Vepery, Chennai.
3.The Superintendent,
   Central Prison, Puzhal, Chennai.				..	Respondents

Prayer:	Petition filed underArticle 226of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records of the proceedings dated 12.01.2014 in Memo No.60/BDFGISSV/2014 on the file of the 2nd respondent detaining petitioner's son Mr.Arun under the provisions of the Tamil Nadu Act 14 of 1982, and to quash the same as illegal and without jurisdiction and to further produce the detenu Thiru Arun before this Court and set him at liberty forthwith.

		For Petitioner 		: 	Mr.S.Sivashankar
		For Respondents 	  	: 	Mr.P.Govindarajan,APP

ORDER[Order of the Court was made by S.RAJESWARAN, J.]
	Challenge is made to the order of detention passed by the second respondent vide Proceedings in Memo No.60/BDFGISSV/2014 dated 12.01.2014, whereby the son of the petitioner by name Arun, S/o.Ravi,  aged 27 years, was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "GOONDA".2. As per the grounds of detention dated 12.01.2014, passed by the second respondent, the detenu came to adverse notice in the following cases:i)Adverse case:Sl
No.
Name of the Police station and Crime No.
Section of law1F5 Choolaimedu PS Cr.No.1462/2013
294[b], 341, 323, 324 & 506[ii] IPC2F5 Choolaimedu Police Station Cr.No.2/2014
341, 302 & 506[ii] IPC(ii) Ground Case:Sl
No.
Name of the Police station and Crime No.
Section of law1F5 Choolaimedu Police Station Cr.No.5/2014
341, 294[b], 427, 307, 336 & 506[ii] IPC3.Though many grounds have been raised in the petition, Mr.S.Sivashankar, 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.4. According to the learned counsel appearing for the petitioner, the detenu has been in remand in the adverse cases [Cr.Nos.1462/2012 and 02/2014] and also in the ground case in Cr.No.5/2014 registered by F5 Choolaimedu Police Station and the detenu has not moved any bail applications in the said cases as on the date of the passing of the detention order.  He would also contend that the detaining authority has placed reliance on the statement of the sponsoring authority to the effect that the relatives of the detenu are taking steps to take him out on bail by filing bail applications in the adverse cases and in the ground case. The learned counsel would add that admittedly, in this case, the detenu has not moved any bail applications in the adverse cases as well as in the ground case.  When no bail application is filed, there is no real possibility of the detenu coming 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 in the adverse cases and there is imminent possibility of the detenu coming out on bail in the said cases.  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 there is real possibility of the detenu coming out on bail in the adverse cases and 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] and [c] 2012 [7]SCC 181 [HUIDROM KONUNGJAO SINGH VS. STATE OF MANIPUR] .5.Per contra, the learned Additional Public Prosecutor would submit that the order of detention has been passed on cogent and sufficient materials and the same cannot be interfered with at the instance of the petitioner. Therefore, he submits that the Habeas Corpus Petition does not merit any consideration and the same is liable to be dismissed.6.We have heard the learned counsel for both sides with regard to the facts and citation.7.Before adverting to the arguments of the counsel for both sides, we would like to reproduce the relevant portion of the grounds of the detention order, viz., paragraph 4,  on which much reliance has been placed by the learned counsel appearing for the petitioner:"4.I am aware that Thiru Arun is in remand in F5 Choolaimedu PS Cr.Nos.1462/2012, 2/2014 and 6/2014 and he has not moved any bail application so far.  The  relatives of Thiru Arun are taking action to take him on bail by filing bail application in F5 Choolaimedu PS Cr.Nos.36/2014 and 6/2014 by filing bail application before the appropriate Court.  In a similar case registered at F5 Choolaimedu PS Cr.No.613/2013 registered u/s.294[b], 341, 324 & 506[ii]IPCbail was granted by the 17th Metropolitan Magistrate Court, Saidapet, Chennai in Crl.MP.No.2333/2013.  In a similar case registered at F5 Choolaimedu PS Cr.No.1357/2012u/s.302and506[ii]IPCbail was granted by the Hon'ble High Court in Crl.OP.No.31089/2012.  Similarly, in a case registered at F5 choolaimedu PS Cr.No.1302/2012 registeredu/s.325,452,307IPC bail was granted by the Principal Sessions Court in Crl.MP.No.10648/2012, since in similar cases bails are granted by the Courts after a lapse of time.  Hence, I infer that there is real possibility of his coming out on bail in F5 Choolaimedu PS Cr.Ns.1462/2012, 2/2014 and 6/2014 by filing bail application before appropriate court.  If he comes out on bail, he will further indulge in such activities in future, which will be prejudicial to the maintenance of public order..............."8.As could be seen from the above ground in the order of detention, the detenu is in remand in the ground case [Cr.No.5/2014] and in the adverse cases [Cr.Nos.1462/2012 and 2/2014] and he has not filed any bail applications in the said adverse cases as well as in the ground case as on the date of passing of the detention order.  Merely stating that steps have been taken on behalf of the detenu by the relatives of the detenu to file bail application in the said cases is not sufficient to pass an order of detention. Excepting recording a statement that the relatives of the detenu are taking steps to file bail applications, no other material are shown as to the steps taken to file bail application in the adverse cases and in the ground case.  When no bail application is filed, there is no imminent possibility of the detenu coming out on bail.   Therefore, the subjective satisfaction arrived at by the detaining authority that there is real possibility of his coming out on bail in the ground case as well as in the adverse cases  would be a mere ipse dixit and that would vitiate the order of detention and the same is indicative of total non-application of mind on the part of the Detaining Authority.   Therefore on this ground alone the impugned order is liable to be set aside.   Further, the Detaining Authority, in paragraph 3 of the Grounds of Detention mentioned the crime number in respect of the ground case as Cr.No.5/2014 ; but whereas in the entire  paragraph 4 of the Grounds of Detention [English version], the Detaining Authority has mentioned the crime number as Cr.No.6/2014, which is also indicative of the total non-application of mind on the part of the Detaining Authority.  Hence, the order of detention cannot be sustained in the eye of law and the same is liable to be set aside.9.In this connection it is useful to refer the judgment of the Hon'ble Apex Court relied on by the learned counsel for the petitioner.[a]In 2006 [1] MLJ [Crl.] 539, [T.V.SARAVANAN @ S.A.R.PRASANNA VENKATACHARIAR CHATURVEDI V. STATE  OF TAMILNADU THROUGH SECRETARY AND ANOTHER] , wherein the Hon'ble Apex Court has held as follows:"The Courts had rejected the bail applications moved by the appellant and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted.  The "imminent possibility" of the appellant coming out on bail is mere ipse dixit of the detaining authority unsupported by any material whatsoever.  There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail.  The inference has to be drawn from the available material on record, in the absence of such material on record, the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention."[b]In 2005 (1) CTC 577 (Velmurugan @ Velu vs. The Commissioner of Police), it has been held as follows:"3.......unless there is a clear expression by the detaining authority in the grounds of detention with reference to the imminent possibility of the detenu being released on bail by filing bail application, the detaining authority would not choose to pass the detention order. In order to prevent the detenu from committing the acts, which would be disturbance to public order and public health, the detaining authority shall consider the materials and on the basis of subjective satisfaction that there is imminent possibility of the detenu coming out on bail or likelihood of the detenu being released on bail, the detaining authority may pass such an order under Tamil Nadu Act 14 of 1982. When such an essential requirement, namely, the imminent possibility of the detenu coming out on bail, is absent, it has to be held that the order of detention is vitiated."[c]In 2012 [7] SCC 181 [cited supra] which reads thus:-12.InRekha v. State of Tamil Naduthrough Secretary to Govt. &amp; Anr., (2011) 5 SCC 244, this Court while dealing with the issue held :. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored
	In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground.14......... Thus, as the detenu in the instant case has not moved the bail application and no other co- accused, if any, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eyes of law."10.It is a trite law that personal liberty protected underArticle 21is so sacrosanct and so high in the scale of Constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law.  Preventive detention is preventive and not punitive.  When ordinary law of the land is sufficient to deal with, taking recourse to the preventive detention law is illegal.11.In the light of the above facts and law, we have no hesitation in quashing the order of detention on the above mentioned grounds.12.Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order in Memo No.60/BDFGISSV/2014 dated 12.01.2014 passed by the second respondent is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.(S.R.,J.)	 (P.N.P.,J.)
							   		  01.09.2014
AP









To1.The Secretary to the Government,
   Government of Tamil Nadu
   Home, Prohibition and Excise Department
   Fort St George, Chennai-600 009.2.The Commissioner of Police
   O/o.the Commissioner of Police
   Vepery, Chennai.3.The Superintendent,
   Central Prison, Puzhal, Chennai.4.The Public Prosecutor, High Court, Madras.S.RAJESWARAN,J.AND
					         P.N.PRAKASH, J.APH.C.P.No.870/201401.09.2014