IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 6/12/2004
CORAM
THE HONOURABLE MR.JUSTICE M.KARPAGAVINAYAGAM
AND
THE HONOURABLE MR.JUSTICE C.NAGAPPAN
H.C.P.No.1058 of 2004
A.Thirumalvalavan .. Petitioner
-vs-
1. The Government of Tamil Nadu,
Rep. by its Secretary,
Department of Prohibition & Excise,
Fort St.George, Chennai.
2. The District Magistrate and District Collector,
Cuddalore & District.
3. The Superintendent of Central Prison, Chennai. ..
Respondents
Habeas Corpus Petition filed under Article 226 of the Constitution of
India, praying for issuance of a writ of habeas corpus, to call for the
records of the detention order C.3/D.O.104/2004, dated 16.8.2004 passed by the
second respondent and quash the same and consequently to produce the detenu
Elango Nambi @ Elango @ Siva @ Sivakumar, S/o Ambalavanan Pillai, aged 34,
before this Court and set his liberty forthwith.
!For petitioner : Mr.R.Sankarasubbu
for M/s.P.Vijendran
^For respondents : Mr.E.Raja, Addl.P.P.
:ORDER
M.KARPAGAVINAYAGAM,J.
The question posed before this Court for consideration in this habeas
corpus petition is as to whether it is necessary to assert on the part of the
detaining authority in the grounds of detention while passing the order of
detention on the detenu that there is imminent possibility of filing the bail
application and consequently, there is imminent possibility of the detenu
coming out on bail.
2. A.Thirumalvalavan, the petitioner herein, who is the brother of
the detenu Elangonambi @ Elango @ Siva @ Sivakumar, has filed this habeas
corpus petition seeking to set aside the order of detention dated 16.8.2004,
branding the detenu as a Goonda.
3. According to learned counsel appearing for the petitioner, the
detaining authority has merely mentioned in the grounds of detention that,
“There is possibility of moving a bail and coming out on bail by filing a bail
application in the Court. I am also aware that in similar cases accused are
enlarged by the same Court or the superior Court after lapse of some time.”;
but the detaining authority did not refer to the fact that the imminent
possibility of filing the bail application and the likelihood of the detenu
being released on bail, which is the basic essential requirement for passing
an order of detention and as such, this would make the detention order
vitiated. In order to substantiate the said plea, learned counsel appearing
for the petitioner has cited number of authorities.
4. We have also heard learned Additional Public Prosecutor who has
also cited number of decisions on the said aspect.
5. We have given our anxious consideration to the merits of the
contentions urged by learned counsel for the parties and also gone through the
records and citations.
6. Let us first refer to the relevant observations made in the
various decisions rendered by the Supreme Court and this Court while dealing
with the said aspect.
7. In the decision reported in 1964 S.C.R. 921 (Rameshwar Shaw vs.
District Magistrate, Burdwan @ Anr), the Supreme Court would observe as
follows:
” …. if the authority is bona fide satisfied that such detention is
necessary, he can make a valid order of detention a few days before the person
is likely to be released. The antecedent history and the past conduct on
which the order of detention would be based, would, in such a case, be
proximate in point of time and would have a rational connection with the
conclusion drawn by the authority that the detention of the person after his
release is necessary. ……”
8. In the decision reported in 1986 (4) S.C.C. 416 (Binod Singh vs.
District Magistrate), the Supreme Court would hold as follows:
“7. ….. If a man is in custody and there is no imminent
possibility of his being released, the power of preventive detention should
not be exercised. In the instant case when the actual order of detention was
served upon the detenu, the detenu was in jail. There is no indication that
this factor or the question that the said detenu might be released or that
there was such a possibility of his release, was taken into consideration by
the detaining authority properly and seriously before the service of the
order. A bald statement is merely an ipse dixit of the officer. If there
were cogent materials for thinking that the detenu might be released then
these should have been made apparent. …..”
9. In 1992 S.C.C. (Cri.) 1 (Abdul Sathar Ibrahim Manik. vs. Union
of India), the Supreme Court held as follows:
13. … In the counter affidavit, it is stated that the period of
remand to the judicial custody was to expire the next day after the detention.
Therefore there was every likelihood of his moving for bail and getting
released on bail. These materials show that the detaining authority was not
only aware that the detenu was in jail but also noted the circumstances on the
basis of which he was satisfied that the detenu was likely to come out on bail
and continue to indulge himself in the smuggling activities. It, therefore,
cannot be said that there was no compelling reasons justifying the detention
despite the fact that the detenu is already in custody. …”
10. In the decision reported in 1994 Supp. (1) S.C.C. 597 (
Rivadeneyta Ricardo Agustin vs. Govt. of Delhi), the Supreme Court held as
under:
“8. The above statement merely speaks of a “possibility” of the
detenu’s release in case he moves the bail petition. It neither says that
such release was likely or that it was imminent. Evidently, the statement
falls short of the requirement enunciated by this Court in Kamarunnissa (1991
(1) S.C.C. 128 = 1991 S.C.C. (Cri) 88). Even in the return filed in this
petition, the authority has not stated (in response to Ground ‘B’ of the writ
petition) that there was material before him upon which he was satisfied that
the petitioner was likely to be released or that such release was imminent.
…
9. ….
10. …
11. In the circumstances, we must hold that the principle enunciated
by this Court in Kamarunnissa vs. Union of India ( 1991 (1) S.C.C. 1 28 =
1991 S.C.C. (Cri) 88) squarely applies and the order is liable to be quashed.
It is accordingly quashed.”
11. In 1994 S.C.C. (Cri) 482 (Veeramani vs. State of T.N.), the
Supreme Court held as follows:
“7. Learned counsel, however, submitted that by making a sweeping
statement that the petitioner is likely to be released on bail, the detaining
authority cannot pass a detention order and when there is no likelihood of his
being released on bail from custody, the order of detention is illegal
inasmuch as there is no proper application of mind. …..
…..
8. But in the instant case what we have to mainly see is whether
there was awareness in the mind of the detaining authority that the detenu is
in custody and that he had reason to believe that he is likely to be released.
The grounds do disclose that the detaining authority was aware that the detenu
is in custody and it is further mentioned that he was also aware that bail is
usually granted by the courts in such cases and it is further emphasised that
there is ‘imminent possibility’ of the detenu coming out on bail.
….
Therefore it cannot be said that the detaining authority has not applied its
mind to this aspect. …”
12. In the decision reported in 1995 (1) L.W. (Crl) 149 (Vinayagam
vs. The District Magistrate and Collector of N.A.Ambedkar Dist., Vellore &
Another), the Division Bench of this Court would hold as follows:
“3. ….. In the Tamil grounds, all that the Detaining Authority has
stated is that the detenu may file a bail application and if he came out on
bail, he will indulge in future prejudicial activities. Nowhere, the
detaining authority has stated that there was an imminent possibility of his
being released on bail or there was such a likelihood, which would then allow
the detenu to remain at large making it possible for him to indulge himself in
future prejudicial activities. So long as that vital link is missing, on the
law laid down by the Supreme Court in Rivadeneyta Ricardo Agustin vs. Govt.
of Delhi (1994 S.C.C. (Cri) 354), the detenu is bound to succeed.”
13. The Apex Court, in the decision reported in 2001 (1) S.C.C. 341
(Amritlal vs. Union Govt.) held as follows:
“As held in Binod Singh case (1986 (4) S.C.C. 416), if a person is in
custody and there is no imminent possibility of his being released therefrom,
the power of detention should not ordinarily be exercised. There must be
cogent material before the officer passing the detention order that the detenu
is likely to be released on bail. The inference must be drawn from the
available material on record and must not be the ipse dixit of the officer
passing the order of detention. In the present case the requirement that
there was likelihood of the detenus being released on bail was, however, not
available in the reasoning as provided by the officer concerned. The
reasoning available is the “likelihood of his moving an application for bail”
which is different from “likelihood to be released on bail”. This reasoning
is not sufficient compliance with the requirements as laid down. The
available cogent material in this case was the likelihood of having a bail
application moved in the matter but not obtaining a bail order. Therefore,
the detention order is liable to be quashed.”
14. In 2003 M.L.J. (Crl) 652, a Division Bench of this Court
observed as follows:
9. …. The counsel for the petitioner has not pointed out any
judgment positively holding that the expression “imminent”, is a must or
mandatory. The said expression could not be substituted by any word or words
“meaning that the “release on bail was likely” in the immediate future or at
the earliest. Such a meaning should be conveyed in the detention order and it
must be shown that the Detaining Authority before passing the order was
satisfied about the need to pass the order.
(paragraph 13 of the Kamarunnissa vs. Union of India (1991 (1) S.C.
C. (Crl.) 88 is extracted in the decision)
10. ….
11. …
12. The above extract will show that the usage of the word ”
imminent” is not absolutely essential. It would be sufficient even to state
that the detenu was likely to be released on moving a petition for bail. …
“.
15. In a Division Bench decision of this Court reported in 2004
M.L.J. (Crl.) 739 (Mohammed Meeran, Chennai vs. State of Tamil Nadu), it is
held as follows:
“8. Following the ratio of the aforesaid decision, (Binod Singh vs.
District Magistrate, Dhanabad (1964 (4) S.C.C. 416), in our opinion, in the
present case, the order of detention is required to be set aside on account of
the fact that there has been non-application of mind by the detaining
authority who has recited about the possibility of the detenu being enlarged
on bail, but there is nothing to indicate that the detaining authority had
considered about the possibility of the detenu being released on bail
“imminently”. ”
16. Having regard to the various above citations on the point raised,
we find it appropriate to set down the following gist of conclusions referred
to above:
(i) A detention order can validly be passed even in the case of a
person who is already in custody. In such a case, it must appear from the
grounds that the authority was aware that the detenu was already in custody.
(ii) When such awareness is there, then it should further appear from
the grounds that there was enough material necessitating the detention of the
person in custody.
(iii) If there is a possibility of the detenu being released and on
being so released, he is likely to be indulge in prejudicial activity, then
that would be one such compelling necessity to pass the detention order.
(iv) If the authority is bona fide satisfied that such detention is
necessary, he can make a valid order of detention a few days before the person
is likely to be released. (emphasis supplied). The antecedent history and
the past conduct on which the order of detention would be based, would, in
such a case, be proximate in point of time and would have a rational
connection with the conclusion drawn by the authority that the detention of
the person after his release is necessary.
(v) The reasonableness of the satisfaction of the detaining authority
cannot be questioned in a Court of law for the reason that the satisfaction of
the detaining authority is his subjective satisfaction; the adequacy of the
material on which the said satisfaction purports to rest also cannot be
examined in a Court of law.
(vi) There must be awareness of the facts necessitating preventive
custody of a person for social defence. If a man is in custody, and there is
no imminent possibility of his being released, the power of preventive
detention should not be exercised.
(vii) If there are cogent materials for thinking that the detenu might
be released, then these should have been made apparent.
(viii) The mere statement that the possibility of the detenu’s release
in case he moves a bail petition, would not satisfy the mandatory requirement.
The detaining authority must assert that such release was likely or that it
was imminent.
(ix) Similarly, the statement that “likelihood of the detenu moving
application for bail necessitating for detention”, would not be sufficient,
since the same is different from the likelihood to be released on bail, which
is the essential requirement to make the detaining authority to pass the order
of detention.
(x) The usage of the word “imminent” is not absolutely essential. No
decision would say that the expression “imminent” is a must or mandatory. In
other words, the said word “imminent” could be substituted by any word or
words meaning that “release on bail was likely” or “in the immediate future”
or “at the earliest” Only when such a meaning is conveyed in the detention
order, then there is a need for the detaining authority to pass the order of
detention to arrive at the subjective satisfaction.
17. In the light of the above ratio laid down by the Supreme Court,
we have to see whether the detention order in question contained the basic
ingredient “imminent possibility of the detenu being released on bail”.
18. Let us quote the relevant statement as contained in paragraph 5
of the grounds of detention:
“5. I am aware that Thiru.Elangonambi @ Elango @ Siva @ Sivakumar has
been remanded to judicial custody upto 23.8.2004 and lodged at Special Prison,
Poonamallee, Chennai-56 in connection with the ground case in Cr.No.372/2004
and Cr.No.329/2004. There is possibility of moving a bail and coming out on
bail by filing bail application in the Court. I am also aware that in similar
caes accused are enlarged by the same Court or the superior Court after lapse
of some time. And if he comes out on bail, he will indulge in such further
activities in future as well, which will be prejudicial to the maintenance of
the public order.”
19. Now, we have to see as to whether there is any statement by the
detaining authority in the above passage indicating with reference to the
imminent possibility of the detenu being released on bail, so as to be
prevented by passing the detention order.
20. As indicated above, the detaining authority may use the word ”
imminent” or any word equivalent to the same. Let us see the Dictionary
meaning of the word “imminent” so as to find out whether any other word
equivalent to the word “imminent” has been used in the relevant passage of the
grounds of detention.
21. The following are the equivalent words for the word “imminent” as
found from various Dictionaries:
(i) about to happen;
(ii) likely to happen immediately;
(iii) likely to happen very soon.
22. A perusal of paragraph 5 of the grounds of detention extracted
above would never convey the expression “imminent possibility of the detenu
being released on bail” or “likelihood of the detenu coming out on bail” or
“release on bail was likely” or “release on bail in the immediate future” or
“release on bail at the earliest” indicating that the release would likely to
happen very soon. It has been merely stated in paragraph 5 of the grounds of
detention that “There is possibility of moving a bail and coming out on bail
by filing bail application in the Court.” Whether this is enough? Our answer
would be emphatic “no”.
23. The grounds of detention would indicate that the detenu was in
remand from 26.7.2004 in respect of two cases, one in Crime No.372/20 04
registered for the offences under Sections 294-B, 307, 506 (ii) IPC in respect
of the occurrence that took place on 26.7.2004, and another in Crime
No.329/2004 registered for the offences under Section 3 97 IPC and Sections 4
and 5 of the Explosive Substances Act in respect of the occurrence which took
place on 12.7.2004. Admittedly, both these offences are serious offences.
Upto 16.8.2004, the date of the order of detention, there was no bail
application filed by the detenu.
24. In the light of these two factors, namely (i) the detenu was in
remand in two cases registered for serious offences and (ii) no bail
application was filed, the detaining authority must necessarily arrive at the
subjective satisfaction that there is “imminent possibility of the detenu
filing bail application in both these cases and there is likelihood of the
detenu being released on bail, and consequently, the detention order becomes
necessary”. Admittedly, this is not reflected in the grounds of detention.
25. We are not for a moment inclined to observe that merely because
there are two cases of serious offences, it would be difficult to get bail in
those two cases. Similarly, merely because the applications for bail have not
been filed in these cases in spite of the fact that 20 days have elapsed, we
cannot hold that the detaining authority cannot pass the order of detention.
But we must make it clear that in the light of the above fact situation, the
detaining authority, all the more reason, shall assert in the grounds of
detention that “there is imminent possibility of moving a bail application and
the likelihood of the detenu being released on bail” on the basis of the
materials from which the detaining authority would arrive at the subjective
satisfaction.
26. We are conscious about the settled position of law that we cannot
be called upon to go into the adequacy of the materials placed before the
detaining authority to arrive at the subjective satisfaction that there was
immediate or likelihood of the release of the detenu necessitating the
detention order. But what we want to emphasise is that the subjective
satisfaction arrived at by the detaining authority with regard to the imminent
or likelihood of the detenu being released on bail, shall be expressed in
clear terms in the grounds of detention. If the said expression with
reference to the immediate release is apparently absent, then, it has to be
held that non-application of mind on the part of the detaining authority, is
quite apparent.
27. In the light of what is stated above, since there is no such
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.
28. Accordingly, the impugned order of detention is quashed. The
habeas corpus petition is allowed. The detenu is directed to be set at
liberty forthwith, unless he is required in connection with any other case.
Index: Yes
Internet: Yes
cs
To
1. The Secretary to Government,
Department of Prohibition & Excise,
Fort St.George, Chennai.
2. The District Magistrate and District Collector,
Cuddalore & District.
3. The Superintendent of Central Prison, Chennai.
4. The Joint Secretary to Government,
Public (Law and Order),
Fort St.Goerge, Chennai-9.
5. The Public Prosecutor, High Court, Madras.