BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 26/09/2005
Coram:
The Hon'ble Mr. Justice P. SATHASIVAM
and
The Hon'ble Mr. Justice S. SARDAR ZACKRIA HUSSAIN
HCP (MD) No. 220 of 2005
R. Prema,
W/o Rengarajan,
83, Mahalakshmi Nagar Main Road,
Athikulam, K. Pudur, Madurai.
.. Petitioner.
Vs.
1. The Commissioner of Police,
Madurai City, Madurai.
2. State of Tamil Nadu,
The Secretary to Government,
Government of Tamil Nadu,
Prohibition and Excise Department,
Fort St. George, Chennai-600 009.
.. Respondents.
Habeas Corpus Petition has been filed under Article 226 of the
Constitution of India, to issue a Writ of Habeas Corpus, calling for records of
first respondent in TPDA No. 3555 (No.3/BDFGISV/05) setting aside the order of
detention passed therein dated 29-01-2005, directing the respondent to produce
the detenu by name R. Karthikeyan, son of Rengarajan before this Court, now
detained in Central Prison, Madurai, and setting him at liberty.
!For petitioner ... Mr. A.K. Azagarsami.
^For respondents ... Mr. P. Jothi, Additional
Public Prosecutor.
:ORDER
(Order of Court was made by P. Sathasivam, J.,)
Petitioner herein, mother of detenu- Karthikeyan, challenges the
order of detention dated 29-01-2005 passed by first respondent, detaining her
son as “Goonda” under Tamil Nadu Prevention of Dangerous Activities of
Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic
Offenders, Slum Grabbers and Video Prates Act, 1982 (Tamil Nadu 14 of 1982).
2. Heard learned counsel for the petitioner as well as learned
Additional Public Prosecutor for respondents.
3. Among the grounds raised, learned counsel for the petitioner,
at the foremost, projected that the detenu is in custody and has not filed any
bail application. In such a circumstance, the imminent/real possibility of
coming out on bail could not be ascertained; and in the absence of imminent/real
possibility of being enlarged on bail, the detaining authority is not justified
in clamping the detention order on the ground that if he comes out, he is likely
to indulge in prejudicial activities in future. In other words, according to
the counsel, there is no compelling necessity for the detaining authority for
passing the order of detention. Learned Additional Public Prosecutor met this
contention by stating that considering all the relevant materials, and taking
note of the relevant facts, the detaining authority, after satisfying himself
that the detenu if comes out on bail, will indulge in prejudicial activities
in future, and to prevent him to do so, rightly detained him as ‘Goonda’.
4. In order to appreciate the above contention, it would be useful
to refer the very language used by the detaining authority in para 5 of the
grounds of detention, which is as follows:
“5. I am aware that Thiru Karthikeyan, S/o Rengarajan has been remanded
in judicial custody by the Judicial Magistrate No.II, Madurai on 11-01-2005. He
is a remand prisoner lodged in the Central Prison, Madurai. I am aware that he
has not filed any bail application so far, but there is a possibility of his
filing of such a bail application and being enlarged on bail by the criminal
Court. I am also aware that in such cases bail is granted after lapse of some
time and if the detenu is let to remain at large he is likely to indulge in such
further prejudicial activities in future as well and therefore there is a
compelling necessity to pass this order of detention with a view to preventing
him from indulging in such prejudicial activities in future.”
5. Before considering the fact whether the detaining authority is
justified in passing the order of detention, it is useful to refer the
conclusion arrived at by the Full Bench of this Court in H.C.P.Nos. 171, 188,
198 and 220 of 2005 dated 09-9-2005 (K. THIRUPATHI Vs. DISTRICT MAGISTRATE AND
DISTRICT COLLECTOR, TIRUCHIRAPALLI DISTRICT) with reference to justification
of passing order of detention: (para 26 and 27)
“26. There must be cogent material before the Authority passing the
detention order for inferring that the detenu was likely to be released on bail.
This reference must be drawn from material on record and must not be the ipse
dixit of the Authority passing the detention order.
27. In the case of a person in custody a detention order can
validly be passed if the authority passing the order is aware of the fact that
he is actually in custody; if he has reason to believe on the basis of reliable
material placed before him (a) that there is a real possibility of his being
released on bail, and (b) if it is felt essential to detain him to prevent him
from so doing. If the authority passes an order after recording its
satisfaction in this behalf, such an order cannot be struck down on the ground
that the proper course for the authority was to oppose the bail and if bail is
granted notwithstanding such opposition to question it before a higher court.”
6. In the light of the above referred Full Bench decision of this
Court, let us consider whether the detaining authority is justified in passing
the order of detention in the instant case. There is no dispute that the
detaining authority had taken note of the relevant fact that the detenu has been
remanded to judicial custody by an order of Magistrate. He also noted and
verified that the detenu has not filed any bail application so far. In such a
circumstance, namely, in the absence of any bail application, unless the
detaining authority satisfies himself that there is a real possibility of being
enlarged on bail based on the pendency of the bail application or by filing bail
application, it cannot be claimed that there is a subjective satisfaction for
detaining the detenu under Tamil Nadu Act 14 of 1982. As observed by the Full
Bench in para 26 of the above order, the detaining authority must have an
inference from the materials on record that there is a real possibility of his
being released on bail, and it is essential to detain him to prevent him from
indulging in prejudicial activities in future. In the absence of pendency of
bail application or likelihood of it being filed, or the subjective satisfaction
arrived by the detaining authority was drawn from reliable materials, we are of
the view that there is no real possibility of the detenu being released on bail.
This vital/material aspect has not been gone into by the detaining authority.
Further, the mere statement that the possibility of the detenu’s release in case
he moves a bail petition would not satisfy the mandatory requirement. If there
are cogent materials for them that the detenu might be released, then these
should have been made apparent in the grounds of detention. As said earlier, the
said inference must be drawn from the materials on record and must not be the
ipse dixit of the Authority passing the detention order. The satisfaction must
be reflected in the grounds of detention. On perusal of the materials and the
statement made in para 5, we are satisfied that in the absence of specific
expression in the grounds of detention, we are constrained to conclude that the
detaining authority, in the instant case, has never reflected his application of
mind and consequently, the impugned order of detention is liable to be quashed.
7. Under these circumstances, the impugned order of detention is
quashed. Habeas Corpus Petition is allowed. The detenu is set at liberty
forth-with, unless he is required in connection with any other case.
To:
1. The Commissioner of Police,
Madurai City,
Madurai.
2. The Secretary to
Government of Tamil Nadu,
Prohibition and Excise Department,
Fort St. George, Chennai-600 009.
3. The Superintendent,
Central Prison, Madurai.
4. The Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.