IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04/08/2005
CORAM:
THE HONOURABLE MR.JUSTICE M.KARPAGAVINAYAGAM
and
THE HONOURABLE MR.JUSTICE T.V.MASILAMANI
H.C.P. No.419 of 2005
Barakath Nisa .. Petitioner
-Vs-
1. The Secretary to Govt. of Tamilnadu,
Public (S.C.) Department,
Secretariat,
Chennai-9.
2. The Secretary to Govt. of India,
Ministry of Finance,
Department of Revenue
(COFEPOSA Unit),
Central Economic Intelligence
Bureau,
Janpath Bhavan, "B" Wing, 6th Floor,
Janpath, New Delhi 1.
3. The Superintendent of Central Prison,
Chennai-3. .. Respondents
Habeas Corpus Petition filed under Article 226 of the Constitution of
India praying to call for the records of the first respondent relating to
G.O.No.SR.1/164-4/2005 Public (S.C.) Department dated 17.2.200 5, and quash
the same, and direct the respondents to produce the detenu viz., Ali @ Ahamed
Nias, son of Abudeen, who is now detained in Central Prison, Chennai, under
Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act before this Court and set him at liberty forthwith.
For petitioner : Mr.B.Kumar, Senior Counsel
for Mr.M.Abdul Nazeer
For respondents : Mr.A.Kandasamy,
Addl.P.P. for R.1 & R.3
Mr.P.Kumaresan, SCGSC
for R.2.
-----
:ORDER
(Order of the Court was delivered by M.KARPAGAVINAYAGAM, J.
The order dated 17.2.2005 detaining the detenu under the
COFEPOSA is challenged in this petition.
2. The main ground urged by the counsel for the petitioner,
who is the wife of the detenu, is that there is no reference in the grounds of
detention about the imminent possibility of the detenu being released on bail.
It is submitted that the detenu was arrested on 9.2.20 05 and remanded to
judicial custody on 10.2.2005 and within seven days i.e. on 17.2.2005, the
detention order has been passed. It is stated that he has been arrested on a
non-bailable offence and there is no possibility of his coming out on bail.
Still, the detention order would state that the Government was satisfied that
there are possibilities of the detenu being released on bail.
3. Learned Additional Public Prosecutor, on the strength on
the counter filed on behalf of the first respondent, would submit that even
though the word ‘imminent’ is absent, the fact that the pendency of the bail
application has been mentioned in the detention order would indicate that
there is an imminent possibility of the petitioner being released on bail. It
is the specific assertion of the first respondent through the counter that the
detaining authority was well aware that the judicial custody of the detenu is
only for a short period and that there is a likelihood of the detenu being
released on bail on the bail petition. When the detaining authority has
chosen to use the word ‘likelihood’ in the counter, there is no reason as to
why the terms ‘likelihood’ or ‘imminent possibility’ have not been used in the
order or detention. It is true that in the ground of detention, it is
mentioned that a bail application was filed and the same is pending but it is
admitted that DRI has not filed counter in this regard. Thus, it is clear
that the bail application was not taken up for final disposal.
4. Under those circumstances, the detaining authority should
have specifically averred that there is a likelihood of the detenu being
released on bail or there is an imminent possibility of he being released on
bail. It is laid down by the Apex Court in 1994 SCC (Cri) 354 (Rivadeneyta
Ricardo Augustin v. Government of Delhi) and 1991 (1) SCC 128 : 1991 SCC
(Cri) 88, the absence of the word ‘imminent’ would make it clear that the
detaining authority has not applied his mind while passing the order of
detention. As such, the detention order, in our view, would vitiate and
accordingly, the detention order dated 17.2.2005 is set aside. Consequently,
the habeas corpus petition is allowed. The detenu, viz., Ali @ Ahamed Nias,
son of Abudeen, is directed to be set at liberty forthwith unless his
detention is required in any other case.
gs.
Index:Yes.
To
1. The Secretary to Govt. of Tamilnadu,
Public (S.C.) Department,
Secretariat,
Chennai-9.
2. The Secretary to Govt. of India,
Ministry of Finance,
Department of Revenue
(COFEPOSA Unit),
Central Economic Intelligence
Bureau,
Janpath Bhavan, “B” Wing, 6th Floor,
Janpath, New Delhi 1.
3. The Superintendent of Central Prison,
Chennai-3.
4. The Competent Authority,
SAFEMFOPA,
64/1, G.N.Chetty Road,
Chennai-17.
5. The Public Prosecutor, High Court, Madras.
6. The Commissioner of Police, Greater Chennai.
7. The Director General of Police, Chennai-4.
8. The Additional Director, Directorate of Revenue
Intelligence, Chennai-17.