IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05/09/2005
CORAM
THE HON'BLE MR.JUSTICE P.D.DINAKARAN
AND
THE HON'BLE MR.JUSTICE S.K. KRISHNAN
HCP.No.746 of 2005
Rathinammal .. Petitioner
-Vs-
1. The State of Tamilnadu,
Rep. by its Secretary,
Prohibition and Excise Department,
St.George Fort,
Chennai 600 009.
2. The District Magistrate and District Collector,
Erode District,
Erode. .. Respondents
Petition filed under Article 226 of the Constitution of India praying
for issue of Writ of Habeas Corpus as stated therein.
!For Petitioner : Mr.V.Jeevagiridharan
^For Respondents : Mr.V.M.R. Rajendran
Additional Public Prosecutor
:O R D E R
(The order of the Court was made by
P.D.DINAKARAN, J.)
The petitioner, wife of the detenu, who has been detained under Act 14
of 1982 in the Central Prison, Coimbatore, seeks a writ of habeas corpus to
call for the records pertaining to the order of detention dated 23.6.2005 on
the file of the second respondent herein made in Cr.M.P.No.11/2005/C1, to
quash the same and consequently to direct the respondents herein to produce
the detenu before this Court and set him at liberty.
2. According to the prosecution, on 30.5.2005, while the Inspector of
Police, PEW, Gobichettipalayam was conducting prohibition raid at the western
side of Rayarpalayam bus stop within Varapalayam police station limit, the
detenu Easwaran was found distilling arrack covered by thorny trees. On
apprehension of the detenu, police seized the illicit arrack, fermented wash,
Kannuchatti, mud moda, rubber tube, Alumini Vadaisatti, Mudsatti, a white
plastic container under a mahazar. A case in crime No.371 of 2005 under
Section 4(1)(b), 4(1)(g), 4(1 )(aa) read with 4(1-A) of TNP Act, 1937 was
registered against the detenu.
3. Taking into consideration the above case as ground case and seven
adverse cases of akin nature, the detaining authority had passed the order of
detention on 23.6.2005 terming the detenu as Bootlegger, under Section 3(1) of
the Tamil Nadu Prevention of Dangerous Activities of Bootleggers,
Drug-Offenders, Forest-Offenders, Goondas, Immoral Traffic Offenders, Slum
Grabbers and Video Pirates Act, 1982.
4. The learned counsel for the petitioner inviting our attention to
the observation of the detaining authority in the grounds of detention,
wherein he had stated that the detenu had not filed any bail application,
however, there is an imminent possibility of the detenu coming out on bail,
rightly contends that since the detenu, admittedly, had not preferred any bail
application, question of imminent possibility of coming out on bail does not
arise and hence, the impugned order of detention suffers from non application
of mind.
5. Every citizen in this country has the right to have recourse to
law. He has the right to move the court for bail when he is arrested under
the ordinary law of the land. If the State thinks that he does not deserve
bail, the State could oppose the grant of bail. He cannot, however, be
interdicted from moving the Court for bail by clamping an order of detention.
The possibility of the Court granting
bail may not be sufficient. Nor a bald statement that the person would repeat
his criminal activities would be enough.
There must also be credible information or cogent reasons apparent on the
record that the detenu, if enlarged on bail, would act prejudicially to the
interest of public order, vide Shashi Aggarwal v. State of U.P. ((1988) 1
SCC 436).
6. “Imminent possibility” is relevant to the present
circumstances and not relating to the future. The detaining
authority has passed the impugned order of detention stating that there is an
imminent possibility of coming out on bail, without any basis for such a
possibility to occur in future,
particularly, when the detenu has not resorted to file any bail application,
which would reflect the non application of mind of the detaining authority to
the actual situation of the case.
7. Similar view was also taken by a Division Bench of this Court, to
which one of us (PDDJ) was a party, in the order dated 23.12.2003 made in HCP
No.1611 of 2003.
8. For all these reasons, the impugned order of detention vitiates
for non application of mind and accordingly, the same 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 vr To 1. The Secretary to Government, Prohibition and Excise Department, St.George Fort, Chennai 600 009.
2. The District Magistrate and District Collector,
Erode District, Erode.
3. The Superintendent,Central Prison, Coimbatore.
4. The Joint Secretary, Public Department,
Fort St.George, Chennai -9.
5. The Public Prosecutor, High Court, Madras.