JUDGMENT
P.K. Misra, J.
1. The order of detention dated 17.11.2006 under Section 3(1) 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 of 1982), on the allegation that detenu is a Goonda, is in question.
2. The detenu came to the adverse notice of the police in two adverse cases which were registered under Section 394 read with 397 IPC Valasaravakkam Police Station Cr. No. 396/2006. and under Sections 341, 323, 324 and 506(2) IPC vide Valasaravakkam Police Station Cr. No. 532 of 2006. These incidents. occurred on 2.7.2006 and 9.9.2006 respectively. Both the cases had been charge-sheeted. The case which was the immediate reason for passing the order of detention (ground case) allegedly occurred on 11.9.2006. It is apparent from the grounds of detention that in 1998 several persons had committed offence under Sections 363, 324, 364 @ 302 IPC and the said murder case was posted for hearing before the Court on 11.9.2006. Some of the accused persons were waiting at the Court to attend trial and since one of the co-accused, namely, Rajadurai, who was in jail custody had not been brought, the Court had asked other accused to wait till the arrival of the co-accused. While the, accused persons were proceeding to take lunch, Tvl. Binu, Radha @ Radhakrishnan, Allavudin, Reagen, Ramesh (present detenu), Jai @ Jaikumar, Sekar @ Chandrasekar, Karuna @ Karunakaran, Hari @ Bangalore Hari, who were armed with knives, ran towards those accused persons. At that time, Thiru. Saravanan, one of the accused facing trial in Madhuravayal Police Station Cr. No. 1126/1998, ran away from the spot, Tvl. Binu, Radha @. Radhakrishnan, Allavudin, Reagen, Ramesh, Jai @. Jaikumar, Sekar @ Chandrasekar, Karuna @ Karunakaran, Hari’ @ Bangalore Hari chased Elumalai, another accused, who fell down and raised hue and cry stating that he should not be assaulted. Binu caught Elumalai and asked his associates to cut Elumalai. Other persons including the detenu, gave cut-blows indiscriminately. Public came for Elumalai’s rescue, but the assailants threatened the public and subsequently ran away. On the basis of the aforesaid allegation, T-12 Poonamallee Police Station Cr. No. 1009/2006 for offence under Sections 148, 149, 302 and 506(2) IPC was registered. The detenu surrendered before the Judicial Magistrate, Alandur on 14.9.2006 in R9 Valasaravakkam Police Station Cr. No. 532 of 2006 and was remanded till 18.9.2006. Subsequently, the Inspector had taken the detenu on police custody and ultimately had requested the Magistrate to remand the deenu in T-12 Poonamallee Police Station Cr. No. 1009/2006. The remand order was being extended periodically. It was alleged that offence under Sections 148, 149, 302 and 506(2) IPC had been committed.
3. In the grounds of detention, the detaining authority recited:
4. I am aware that Thiru Ramesh is in remand in T-12 Poonamallee Police Station Crime No. 1009/2006 and R9 Valasaravakkam Police Station Crime No. 532/2006 and he has not moved any bail application so far. I am also aware that there is real possibility that he may come out on bail by filing bail application before the same court or higher courts since in similar cases bails are granted by the same court or higher courts. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of pubic order….
4. It is contended by the petitioner that conclusion of the detaining authority regarding imminent possibility of the detenu being released on bail is based on mere ipse dixit of the detaining authority without any material on record.
5. It has been held in several decisions of the Supreme Court that even though there is no embargo on passing an order of detention in respect of a person already in custody, before passing such order of detention, the detaining authority is required to come to a conclusion that there is imminent possibility of being released on bail. It is no doubt true that the ultimate conclusion is based on the subjective satisfaction of the detaining authority and ordinarily the Court cannot sit over such conclusion. However, it is well recognized that such conclusion of the detaining authority should not be the mere ipse, dixit of the detaining authority, but on the other hand should be based on cogent materials on record. (See (T.P. Moideen Koya v. State of Kerala), 2004 SCC (Crl)239 (Union of India v. Paul Manickam), (2006) 1 M.L.J. (Cel) 539 (T.V. Saravanan alias S.A.R. Prasanna Venkatachariar Chaturvedi v. State, Through Secretary and Anr.), (2006) 9 SCC 711 (A. Shanthi (Smt) v. Government of Tamil Nadu and Ors.) and the Full Bench decision in 2005(4) CTC 497 (K. Thirupathi v. District Magistrate and District Collector, Tiruchirapalli District At Tiruchirapali and Anr.) HCP. No. 1303 of 2006 disposed of on 27. 6.2007.
This Court has passed several orders by following the ratio of those decisions, including the H.C.P. No. 1303 of 2006 disposed of on 27. 6. 2007 and HCP. Nos. 46, 52, 74, 79 and 131 of 2007 date 19.6.2007.
6. Learned Counsel for the respondents has placed strong reliance upon the decisions of the Supreme Court reported in (2006) 3 SCC (Cri) 17 (Ibrahim Nazeer v. State of Tamil Nadu and Anr.), (2006) 3 SCC (Cri) 50 (Senthamil Selvi v. State of Tamil Nadu and. Anr.) and (2006) 3 SCC (Cri) 324 (A. Geetha v. State of Tamil Nadu And Anr.).
7. In (2006) 3 SCC (Cri) 17 (Ibrahim Nazeer v. State of Tamil Nadu and Anr.), the detention was under COEEPOSA Act. The only contention was to the effect that the High Court was not justified in upholding the conclusion of the detaining authority regarding imminent possibility of the detenu coming out on bail, more particularly when the detenu had not filed any bail application after withdrawal of the first bail application. The Supreme Court observed:
7. It has to be noted that whether prayer for bail would be accepted depends on the circumstances of each case and no hard-and-fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be an ipse dixit of the detaining authority. On the basis of materials before it, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with. On the facts of the case, the detaining authority has indicated as to why he was of the opinion that there is likelihood of the detenu being released on bail. It has been clearly stated that in similar cases, orders granting bail are passed by various courts. The appellant has not disputed the correctness of this statement. Strong reliance was placed by learned Counsel for the appellant on. Rajesh Gulati. v. Govt. of NCT of Delhi. The factual scenario in that case was entirely different. In fact, five bail applications filed had been already rejected. In that background this Court observed that it was not a “normal” case. The High Court was justified in rejecting the stand of the appellant.
(Emphasis added)
8. In (2006) 3 SCC (Cri) 324 (A. Geetha v. State of Tamil Nadu and Anr.), the detenu was detained under Section 3(2) 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, on, the allegation that detenu was indulging in immoral trafficking. In the appeal, conclusion about the imminent possibility of being released on bail was under challenge. The Supreme Court observed:
10. It has to be noted that whether prayer for bail would be accepted depends on circumstances of each case and no hard-and-fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse dixit of the detaining authority. On the basis of materials before him, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with. On the facts of the case, the detaining authority has indicated as to why he was of the opinion that there is likelihood of the detenu being released on bail. It has been clearly stated that in similar cases, orders granting bail are passed by various courts. The appellant has not disputed the correctness of this statement. Strong reliance was placed by learned Counsel for the appellant on Rajesh Gulati v. Govt. of NCT of Delhi. The factual scenario in. that case was entirely different. In fact, five bail applications filed had been already rejected. in that background this Court observed that it was not a “normal” case. The High Court was justified in rejecting the stand of the appellant. (See Ibrahim Nazeer v. State of T.N. and Sethamilselvi v. State of T.N.)
9. Similar observations had also been made in (2006) 3 SCC (Cri) 50 (Senthamilselvi v. State of Tamil Nadu and Anr.).
10. A careful reading of these decisions indicates that conclusion of the detaining authority regarding imminent possibility of being released on bail was based on materials and as such was not liable to be interfered with. Conclusion of the detaining authority on the basis of materials on record regarding imminent possibility of coming out on bail should not be interfered with. At the same time, the Supreme Court emphasised that such conclusion should not be based on the mere ipse dixit of the detaining authority, but on the other hand should be based on materials on record. As a matter of fact, in all these three cases, the detaining authority had, come to the conclusion that in similar cases orders granting bail are passed by various courts and the Supreme Court observed that the appellant in those cases had not disputed the correctness of this statement. In other words, it is very much clear that the appellant in those cases had not disputed the correctness of the statement that in similar cases bail orders are granted. As a matter of fact, keeping in view the nature of offence in the first two cases noticed by us, one under the Customs Act and the other under Prevention of Immoral Traffic Act, it can be readily concluded that grant of bail is the rule rather than the exception and obviously that is the reason why the appellant had not disputed the correctness of the statement that in similar cases bail orders are granted by the courts.
11. We are unable to persuade ourselves to come to the conclusion that the Supreme Court in the above three decisions intended to depart from the well settled principle of law recognized by series of decisions, which have already been noticed. However, on the peculiar facts situation, the Supreme Court had concluded that conclusion of the detaining authority regarding possibility of being released on bail was based on materials on record and, therefore, not to be interfered with.
12. Keeping in view the well settled principle in all the Supreme Court cases, it has to be decided in the facts of this case as to whether there was materials in support of the detaining authority for coming to the conclusion that there was any real possibility of detenu being coming out on bail.
13. It is contended by the learned Addl. Public Prosecutor that in the Full Bench decision of this Court (cited supra) it has been held that absence of the expression “that there is imminent possibility of being released on bail” may not have the effect of vitiating the satisfaction.
14. A careful reading of the decision of the Full Bench makes it clear that even though the detaining authority has not used the expression “imminent possibility of being released on bail”, if the materials on record indicate such satisfaction, the order of detention cannot be challenged on the ground that such specific recording has not been made.
15. In the present case the possibility of availing statutory bail would have arisen after a period of four weeks. May be if the detaining authority would have come to such a conclusion when 90 days period was about to be over (when only 7 or 10 days was left), one could possibly could not have interfered with the subjective satisfaction, but in the present case the statutory bail if at all would have been available after four weeks and, therefore, it cannot be said that possibility of getting statutory bail was very much imminent or round the corner.
16. It is well recognized that question of grant of bail is based on several factors such as nature of allegation, stage of investigation and even the statutory bail as contemplated under Section 167(2) proviso of Cr.P.C. It is not in dispute and in fact the detaining authority was also aware that investigation in the ground case was still in progress. The offence committed in the ground case is 302 IPC. The conclusion of the detaining authority that “there” is real possibility that he may come out on bail by filing bail application before the same court or higher courts Since in similar cases bails are granted by the same court or higher courts” can only be characterized as mere ipse dixit. It does not require much imagination to come to a conclusion that in cases where accused persons are accused of having committed serious offence like 302, 395 IPC., ordinarily no court would grant bail unless investigation is completed. Offence of 302 IPC is not an offence of a routine nature like 323 or 324 or 379 IPC., where one can reasonably conclude that bail may be granted once bail application is filed, even before completion of the investigation. Conclusion of the detaining authority that there is real possibility of detenu coming out on bail and in similar cases bails are granted by the same court or higher courts is in fact an affront to the common sense of the Judiciary. It is also to be remembered that in the case on hand the offence under Section 302 IPC being punishable with death or life imprisonment, statutory period available for completion of investigation was 90 days and, therefore, there was no possibility of being released on bail by availing such statutory provision. The detention order has been passed after about 2 months of the arrest and therefore about one month time is still left for the purpose of completion of investigation. There has been no material to show that investigation is of a complicated nature and there was no likelihood of completion of investigation before 90 days. Keeping in view the seriousness of nature of the allegation, there is absolutely no justification that even before completion of the investigation bail would be granted.
For the aforesaid reasons and in the absence of any material on record, we are constrained to observe that magic incantation of the words “there is real possibility that he may come out on bail by filing bail application before the same court or higher courts since in similar cases bails are granted by the same court or higher courts” is the mere ipse dixit on the part of the detaining authority rather than based on any material whatsoever.
17. For the aforesaid reasons, the Habeas Corpus Petition is allowed and the detention order is quashed and the detenu is set at liberty forthwith unless his presence is required in connection with any other case.