BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/08/2011 CORAM THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA AND THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN HCP(MD)No.282 of 2011 Muthulakshmi ... Petitioner Vs 1.The District Collector and District Magistrate Tirunelveli District 2.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-9 3.The Inspector of Police, Nanguneri Police Station Tirunelveli City ... Respondents Prayer This Habeas Corpus Petition is filed to issue a Writ of Habeas Corpus to call for records from the 1st respondent in MHS.Confdl.No.07/2011 dated 23.02.2011, to quash the same, to produce the detenu Murugan, aged about 39 years, S/o.Sudalaikannu Thever, now detained in the Central Prison, Palayamkottai before this court and to set him at liberty forthwith. !For Petitioner ... Mr.N.Mohideen Basha ^For Respondents ... Mr.P.Jyothi, APP :ORDER
(Order of the Court was made by ARUNA JAGADEESAN J.)
The petitioner is the wife of the detenu. The petitioner has come
forward with this Habeas Corpus Petition, seeking for the relief of quashing the
impugned detention order dated 23.02.2011, slapped on her husband as “Goonda” as
contemplated under 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 14/1982).
2. Mr.N.Mohideen Basha, the learned counsel for the petitioner would
mainly contend that the impugned order of detention was passed even without
mentioning that there is “imminent possibility” or “real possibility” or “very
likely” or “most likely” for the detenu to come out on bail. It is contended by
the learned counsel for the petitioner that without any subjective satisfaction
and without any cogent material that the detenu is likely to be released on
bail, the impugned detention order was passed and hence, the same is vitiated.
3. Per contra, Mr.P.Jyothi, the learned Additional Public Prosecutor
would submit that there is no illegality or infirmity in the impugned order of
detention. It is contended that the detaining authority has observed that since
the bail petitions filed by the detenu in Cr.MP.No.1621/2011 before the Judicial
Magistrate, Nanguneri and in Cr.MP.No.729/2001 before the District Sessions
Court, Tirunelveli are pending, there is possibility of the detenu getting bail
and that if he comes out on bail, he would further indulge in such activities in
future, which will be prejudicial to the maintenance of the public order and
hence, there is a compelling necessity to detain the detenu in order to prevent
him from indulging in such activities, which are prejudicial to the maintenance
of public order under the provisions of the Tamil Nadu Act 14 of 1982 and the
detaining authority had taken into consideration all the relevant factors to
arrive at subjective satisfaction at the time of passing the impugned order of
detention and as such, the detaining authority rightly passed the detention
order.
4. The perusal of the impugned order of detention would reveal that
there is absolutely no specific mentioning to the effect that there is “imminent
possibility” or “real possibility” or “very likely” or “most likely” for the
detenu to come out on bail. It is also relevant to note that the detaining
authority has stated in paragraph No.6 of the impugned detention order as
hereunder:-
“I am also aware that Thiru.Murugan filed a bail petition before the Judicial
Magistrate, Nanguneri in Cr.MP.No.1621/2011 on 17.2.2011 in Moolaikaripatti
Police Station (Cr.No.08/2011) and the bail petition is yet to be disposed. I
am aware that he is in remand in Moontradaipu Police Station Crime Number
12/2001 and in this case he filed a bail petition before the District Sessions
Court, Tirunelveli in Cr.MP.No.729/2001 on 18.2.2011 and the bail petition is
yet to be disposed of. In order to restrict him from indulging activities in
future, which will be prejudicial to the maintenance of public order, it is
necessary that he has to be kept in judicial custody. Further, the recourse to
normal criminal law would not have the desired effect of effectively preventing
him from indulging in such activities, which are prejudicial to the maintenance
of the public order. On the materials placed before me, I am satisfied that
Thiru.Murugan is a ‘Goonda’ and there is a compelling necessity to detain him in
order to prevent him from indulging in acts which are prejudicial to the
maintenance of public order under the provisions of the Tamil Nadu Act 14 of
1982.”
5. The above finding of the detaining authority is based on mere
surmises and conjectures. Admittedly, the the bail applications filed by the
detenu are pending and no order has been passed on the said bail applications.
But, the detaining authority without any cogent material available on record has
arrived at the conclusion that he will indulge in such activities, which are
prejudicial to the maintenance of public order. In the absence of any materials
on record, on the basis of which, the detaining authority could be satisfied
that the detenu was likely to be released on bail, the mere ipse-dixit of the
detaining authority is not sufficient to sustain the order of detention.
6. At this juncture, it is relevant to refer the decision of the
Hon’ble Apex Court in T.V.Saravanan alias S.A.R.Prasanna Venkatachariar
Chaturvedi v. State, through Secretary and Another reported in 2006 (1) MLJ
(Crl) 539. The Hon’ble Apex court in the said decision held as hereunder:
“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.”
7. In Abdul Sathar Ibrahim Mani Vs. Union of India (AIR-1991-SC-
2261), it is held as follows:-
“Where the detenu was in custody at the time of passing an order of detention
what is strictly required is whether the detaining authority was aware of the
fact that the detenu was in custody, and if so was there any material to show
that there were compelling reasons to order detention in spite of his being in
custody. These aspects assume importance because of the fact that a person who
is already in custody is disabled from indulging in any prejudicial activities
and as such the detention order may not normally be necessary. Therefore, the
law requires that these two tests have to be satisfied in the case of such
detention of a person in custody.”
8. In yet another decision of the Honourable Supreme Court reported
in Ramesh Yadav Vs. District Magistrate, Etah and others (AIR-1986-SC-315), the
Honourable Supreme Court has observed as follows:-
“Where the order of detention was passed because the detaining authority was
apprehensive that in case the detenu was released on bail he would again carry
on his criminal activities in the area, the same was not proper. If the
apprehension of the detaining authority was true, the bail application had to be
opposed and in case bail was granted, challenge against that order in the higher
forum had to be raised. Merely on the ground that an accused in detention as an
under trial prisoner was likely to get bail, an order of detention under the Act
should not ordinarily be passed.”
9. The principles laid down in the decisions cited supra are
squarely applicable to the facts of the present case. In this case also, the
detaining authority in the absence of any cogent material available on record
has inferred that the detenu would be released on bail and if he is released on
bail, he would indulge in such activities in future, which are prejudicial to
the maintenance of public order. There must be cogent material before 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. Likelihood of
detenu’s moving an application for bail application or the pendency of the bail
application filed by the detenu is not a cogent material and detention order
based on such material is liable to be quashed. The detaining authority before
passing the detention order must satisfy themselves that there is likelihood of
the detenu being released on bail and that satisfaction ought to be reached on
cogent material.
10. Yet another contention was made by the learned counsel for the
petitioner that under Section 10 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 14/1982), the State Government should, within three weeks from
the date of detention of a person under the order, place before the Advisory
Board constituted by them under Section 9, the grounds on which the order has
been made and the representation, if any, made by the person affected by the
order.According to the learned counsel for the petitioner, the Government did
not place the detention order before the Advisory Board as contemplated under
Section 10 of the Act and thus, there was a breach of Section 10 of the Act.
Therefore, he would submit that the detention of the petitioner is illegal.
11. Section 10 of the Act reads thus:-
“10. Reference to Advisory Board:- In every case where a detention order has
been made under this Act, the State Government shall, within three weeks from
the date of detention of a person under the order, place before the Advisory
Board constituted by them under Section 9, the grounds on which the order has
been made and the representation, if any, made by the person affected by the
order, and in the case where the order has been made by an officer, also the
report by such officer under sub section (3) of section 3.”
12. There can be no doubt that the provisions under Section 10 of
the Act are mandatory. This court as well as the Honourable Supreme Court has,
on more than one occasion, indicated in unmistakable terms that the safeguard
available to the detenu without trial is what is guaranteed to him under Article
22 sub clause (5) of the Constitution. The time schedule indicated in the Act
and the screening by the Advisory Board are in answer to this requirement. The
Honourable Supreme Court in Khudi Ram Das Vs. State of West Bengal (AIR-1975-SC-
550) said:-
“The constitutional imperatives enacted in this article 22 are two-fold: (1) the
detaining authority must, as soon as may be, that is, as soon as practicable
after the detention, communicate to the detenu the grounds on which the order of
detention has been made and (2) the detaining authority must afford the detenu
the earliest opportunity of making a representation against the order of
detention. These are the barest minimum safeguards which must be observed
before an executive authority can be permitted to preventively detail a person
and thereby drown his right of personal liberty in the name of public good and
social security.”
13. Section 10 of the Act provides that the State Government has
the obligation to cause the papers relating to the detention to be placed along
with the representation, if made, within three weeks from the date of detention
before the Advisory Board. Where a representation is not made with regard to
the detention, the papers without the representation have to be placed before
the Advisory Board within the time prescribed. In case, a representation is
made with reasonable time, the same has also to be promptly attended to and has
to be placed before the Advisory Board. When the reference is received and the
grounds of detention are available, the Advisory Board proceeds to fix the date
of hearing for consideration of justification of the detention.
14. The procedure of the Advisory Board contained in Section 11 of
the Act indicates that the Board has to consider the materials placed before it
and is entitled to call for such opinion as it may deem necessary from the State
Government or from any person concerned and after hearing the detenu, if he
wants to be heard in person, has to report to the appropriate Government within
seven weeks from the date of detention in the manner indicated in the remaining
sub sections of that Section. While dealing with this aspect of the matter, it
is to be borne in mind that Section 10 requires the reference to be placed
before the Board within three weeks and Section 11 requires the report to be
submitted to the Government within seven weeks. The legislative scheme in fixing
the limit of three weeks in Section 10 and further limit of seven weeks in
Section 7 allows at least four weeks’ time to the Board to deal with the matter.
15. In the instant case, 15.3.2011 was the last date of expiry of
three weeks from the date of the detention, but the Advisory Board has met on
30.3.2011 as per the averment made in the counter. There has been an assertion
on behalf of the State Government by the learned Additional Public Prosecutor
that the papers were placed before the Advisory Board only on 30.3.2011. In the
face of above facts, the detention becomes illegal. In the light of the above
said principles laid down by the Honourable Supreme Court, the impugned order of
detention is vitiated and the same is liable to be quashed.
16. In the result, this Habeas Corpus Petition is allowed and the
impugned detention order passed by the 1st respondent in MHS.Confdl.No.07/2011
dated 23.02.2011 is hereby quashed and the detenu Murugan is directed to be set
at liberty forthwith, unless his detention is required in connection with any
other case.
Srcm
To
1.The District Collector and District Magistrate
Tirunelveli District
2.The Secretary to Government, Home, Prohibition and
Excise Department, Secretariat, Chennai-9
3.The Inspector of Police, Nanguneri Police Station
Tirunelveli City
4.The Additional Public Prosecutor, Madurai Bench of
Madras High Court, Madurai