BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14/11/2007
CORAM
THE HONOURABLE MR.JUSTICE F.M. IBRAHIM KALIFULLA
and
THE HONOURABLE MR.JUSTICE S.PALANIVELU
H.C.P.(MD) No.501 of 2007
Vaaneswari ... Petitioner
vs.
1.The Secretary to Government,
Prohibition and
Excise (XIV) Department,
Secretariat, Chennai - 9.
2.The Commissioner of Police,
Madurai City,
Madurai.
3.The Superintendent,
Central Prison,
Madurai. ... Respondents
Habeas Corpus Petition filed under Article 226 of the Constitution of
India to issue a Writ of Habeas Corpus calling for records relating to the order
of detention passed by the 2nd respondent in No.11/BDF GISSY/2007 dated
10.4.2007 and set aside the same and consequently direct the respondents to
produce the body and person of the petitioner husband Sothupanai @ Sivakumar,
son of Murugan, aged 24/07, Panja Compound, Kanmaikarai, Pandiyan Nagar, Madurai
now detained at Madurai Central Prison, before this Court and set him at
liberty.
!For petitioner ... Mr.D.Gurusamy
^For respondents ... Mr.Samuelraj
Addl. Public Prosecutor
:ORDER
(Order of the Court was made by S.PALANIVELU, J)
The petitioner is the wife of the detenu. The second respondent passed
the detention order in No.11/BDF GISSY/2007 dated 10.4.2007.
2. There were 4 adverse cases against the detenu, who has been branded as
Goonda. The first case is in Crime No.277/2000 registered under Section 382 IPC
on the file of the F2 S.S.Colony Police Station, Madurai in which the occurrence
is said to have taken place on 14.3.2000 at 22.00hrs. The second case is in
Crime No.437/2000 registered under Section 379 IPC on the file of the aforesaid
police station alleging that the occurrence took place on 17.4.2000 at about
22.00 hours. Yet another case in Crime No.223/2004 has also been registered
against the detenu under Sections 387 and 506 (ii) IPC on the file of B-11
Karimedu Police Station, Madurai. One more case is in Crime No.913 of 2006
under Sections 341, 323 and 506 (ii) IPC on the file of the B9 SS Colony Police
Station, Madurai.
3. The ground case upon which the detention order came to be passed is one
that on 14.3.2007 at about 07.00 hours one Sundar was coming to Arasaradi
Othakadai Market to purchase vegetables. At that time, the detenu threatened
and demanded a sum of Rs.100/- from him and since he refused, by threatening him
at knife point, the detenu robbed Rs.100/- from the shirt of that C. Sundar and
while Sundar raised alarm, the detenu threatened the general public and escaped
from the scene of crime. A case was registered in Crime No.448/2007 under
sections 392 r/w 397, 506(ii) IPC on the file of the C3 S.S.Colony Police
Station, Madurai.
4. Learned counsel for the petitioner very much assails the order of
detention on the ground that mere reading of the operative portion of the said
order would go to show that there was no application of mind on the part of the
detaining authority. In paragraph 5 of the detention order, the detaining
authority viz., the second respondent has mentioned as follows:
“5. I am aware that Tr.Sothupanai @ Sivakumar, S/o.Murugan is in remand in
ground case C.3.S.S.Colony PS Cr.No.448/2007, lodged at the Central Prison,
Madurai and that bail application moved on his behalf in the above case before
Principal Sessions Judge, Madurai vide Crl.M.P.No.1233/2007 was dismissed on
28.3.2007. I am also aware that there is real possibility of his coming out on
bail by filing further bail application for the above case since in similar
cases bails are granted by the concerned Court or Higher Court after lapse of
time. If he comes out on bail he will indulge in future activities which will
be prejudicial to the maintenance of public order and therefore, there is a
compelling necessity to pass this order of detention with a view to preventing
him from indulging in such activities which are prejudicial to the maintenance
of public order. On the materials placed before me, I am satisfied that the
said Tr.Sothupanai @ Sivakumar, S/o. 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. In fact, the detenu already filed a petition for bail before the
Principal Sessions Judge in Madurai vide Crl.M.P.No.1233 of 2007, which suffered
dismissal on 28.3.2007. After 12 days from the date of dismissal, the detention
order came to be passed. Mentioning the above said fact of the dismissal of the
bail application, the detaining authority has stated that there is every
possibility for the detenu to file further bail application and he may come out
on bail, adding that in similar cases, Concerned Court or the High Court after
lapse of time have granted bail orders.
6. Even though, he has mentioned his apprehension to the effect that if
the detenu comes out on bail, he would indulge in the activities which is
prejudicial to the maintenance of pubalic order in the society, still it has to
be seen in this matter whether the detaining authority has applied his mind
before passing the above said order.
7. In this context, the learned counsel for the petitioner relied on the
decision reported in (2006) 2 Supreme Court Cases 664 (T.V.Sravanan alias
S.A.R.Prasana Venkatachaariar Chaturvedi Vs. State through Secretary and
another) wherein Their Lordships have held as follows:
“14. We are satisfied that for the same reason the order of detention
cannot be upheld in this case. The bail applications moved by the appellant had
been rejected by the Courts 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 merely the 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. There was, therefore, no
sufficient compliance with the requirements as laid down by this Court.”
8. The Apex Court in the above said case when came up for decision,
analysed the previous circumstances when the detenu filed many applications for
bail which faced dismissal even then the detaining authority had observed that
there was possibility for the detenu to file fresh applications for bail and he
might get bail from the concerned court and that there was imminent possibility
for him to come out on bail.
9. Taking into consideration the above said version of the detaining
authority, the Hon’ble Supreme Court has found that the terms employed by the
detaining authority are only ipse dixit of the said authority and it will not be
sufficient to satisfy the requirements of settled principles of law.
10. The settled legal position and the guidelines formulated by the
Hon’ble Supreme Court have to be followed on the identical circumstances
prevailing in this matter also.
11. In the light of the dictum laid down by the Supreme Court when the
detention order in this case is considered, it is very clear that the detaining
authority has not applied his mind before passing the detention order.
12. In view of the above said position of law, the detention order passed
by the second respondent suffers from infirmity.
13. Learned counsel for the petitioner also placed reliance upon the
Division Bench decision of this Court passed in Habeas Corpus Petition (MD)
No.248 of 2007 on 10.8.2007 wherein similar circumstances were prevailing and
this Court found that there was no material to show that the detenu would file
bail application and the apprehension on the part of the detaining authority is
mere ipsi dixit, which was not based upon any cogent materials. In the above
said circumstances, we do not satisfy with the materials made available in the
ground case and the detention order deserves to be quashed.
14. In the result, the Habeas Corpus Petition is allowed. The impugned
detention order dated 10.4.2007 is quashed and the detenu is directed to be
released forthwith if he is not required in connection with any other case.
asvm
To
1.The Secretary to Government,
Prohibition and
Excise (XIV) Department,
Secretariat, Chennai – 9.
2.The Commissioner of Police, Madurai City, (asvm) Madurai. 3.The Superintendent, Central Prison, Madurai. 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.