{"id":217443,"date":"2004-12-06T00:00:00","date_gmt":"2004-12-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-thirumalvalavan-vs-the-government-of-tamil-nadu-on-6-december-2004"},"modified":"2016-05-09T06:45:16","modified_gmt":"2016-05-09T01:15:16","slug":"a-thirumalvalavan-vs-the-government-of-tamil-nadu-on-6-december-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-thirumalvalavan-vs-the-government-of-tamil-nadu-on-6-december-2004","title":{"rendered":"A.Thirumalvalavan vs The Government Of Tamil Nadu on 6 December, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
A.Thirumalvalavan vs The Government Of Tamil Nadu on 6 December, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDATED: 6\/12\/2004  \n\nCORAM   \n\nTHE HONOURABLE MR.JUSTICE M.KARPAGAVINAYAGAM                \nAND  \nTHE HONOURABLE MR.JUSTICE C.NAGAPPAN            \n\nH.C.P.No.1058 of 2004 \n\nA.Thirumalvalavan                                                                   .. Petitioner\n\n-vs-\n\n1. The Government of Tamil Nadu, \n    Rep. by its Secretary,\n    Department of Prohibition & Excise,\n    Fort St.George, Chennai.\n\n2. The District Magistrate and District Collector,\n    Cuddalore & District.\n\n3. The Superintendent of Central Prison, Chennai.                       ..\nRespondents  \n\n        Habeas Corpus Petition filed under Article 226 of the Constitution  of\nIndia,  praying  for  issuance  of  a  writ  of habeas corpus, to call for the\nrecords of the detention order C.3\/D.O.104\/2004, dated 16.8.2004 passed by the\nsecond respondent and quash the same and consequently to  produce  the  detenu  \nElango  Nambi  @  Elango  @ Siva @ Sivakumar, S\/o Ambalavanan Pillai, aged 34,   \nbefore this Court and set his liberty forthwith.\n\n!For petitioner :  Mr.R.Sankarasubbu\n                for M\/s.P.Vijendran\n\n^For respondents :  Mr.E.Raja, Addl.P.P.\n\n\n:ORDER  \n<\/pre>\n
M.KARPAGAVINAYAGAM,J.\n<\/p>\n
        The question posed before this Court for consideration in this  habeas
\ncorpus  petition is as to whether it is necessary to assert on the part of the
\ndetaining authority in the grounds of detention while  passing  the  order  of
\ndetention  on the detenu that there is imminent possibility of filing the bail
\napplication and consequently, there is  imminent  possibility  of  the  detenu
\ncoming out on bail.\n<\/p>\n
        2.  A.Thirumalvalavan, the petitioner herein, who is  the  brother  of
\nthe  detenu    Elangonambi @ Elango @ Siva @ Sivakumar, has filed this habeas
\ncorpus petition seeking to set aside the order of detention  dated  16.8.2004,
\nbranding the detenu as a Goonda.\n<\/p>\n
        3.   According  to  learned  counsel appearing for the petitioner, the
\ndetaining authority has merely mentioned in the  grounds  of  detention  that,
\n“There is possibility of moving a bail and coming out on bail by filing a bail
\napplication in  the  Court.  I am also aware that in similar cases accused are
\nenlarged by the same Court or the superior Court after lapse of  some  time.”;
\nbut  the  detaining  authority  did  not  refer  to the fact that the imminent
\npossibility of filing the bail application and the likelihood  of  the  detenu
\nbeing  released  on bail, which is the basic essential requirement for passing
\nan order of detention and  as  such,  this  would  make  the  detention  order
\nvitiated.   In  order to substantiate the said plea, learned counsel appearing
\nfor the petitioner has cited number of authorities.\n<\/p>\n
        4.  We have also heard learned Additional Public  Prosecutor  who  has
\nalso cited number of decisions on the said aspect.\n<\/p>\n
        5.   We  have  given  our  anxious  consideration to the merits of the
\ncontentions urged by learned counsel for the parties and also gone through the
\nrecords and citations.\n<\/p>\n
        6.  Let us first refer  to  the  relevant  observations  made  in  the
\nvarious  decisions  rendered by the Supreme Court and this Court while dealing
\nwith the said aspect.\n<\/p>\n
        7.  In the decision reported in 1964 S.C.R.  921 (Rameshwar  Shaw  vs.
\nDistrict  Magistrate,  Burdwan<\/a>  @  Anr),  the  Supreme  Court would observe as
\nfollows:\n<\/p>\n
        ” ….  if the authority is bona fide satisfied that such detention is
\nnecessary, he can make a valid order of detention a few days before the person
\nis likely to be released.  The antecedent history  and  the  past  conduct  on
\nwhich  the  order  of  detention  would  be  based,  would, in such a case, be
\nproximate in point of time and would  have  a  rational  connection  with  the
\nconclusion  drawn  by the authority that the detention of the person after his
\nrelease is necessary.   ……”\n<\/p>\n
        8.  In the decision reported in 1986 (4) S.C.C.  416 (Binod Singh  vs.
\nDistrict Magistrate), the Supreme Court would hold as follows:\n<\/p>\n
        “7.  …..    If  a  man  is  in  custody  and  there  is  no imminent
\npossibility of his being released, the power of  preventive  detention  should
\nnot be  exercised.  In the instant case when the actual order of detention was
\nserved upon the detenu, the detenu was in jail.  There is no  indication  that
\nthis  factor  or  the  question that the said detenu might be released or that
\nthere was such a possibility of his release, was taken into  consideration  by
\nthe  detaining  authority  properly  and  seriously  before the service of the
\norder.  A bald statement is merely an ipse dixit of the  officer.    If  there
\nwere  cogent  materials  for  thinking  that the detenu might be released then
\nthese should have been made apparent.  …..”\n<\/p>\n
        9.  In 1992 S.C.C.  (Cri.) 1 (Abdul Sathar Ibrahim Manik.  vs.   Union
\nof India), the Supreme Court<\/a> held as follows:\n<\/p>\n
        13.  …    In  the counter affidavit, it is stated that the period of
\nremand to the judicial custody was to expire the next day after the detention.
\nTherefore there was every likelihood  of  his  moving  for  bail  and  getting
\nreleased on  bail.   These materials show that the detaining authority was not
\nonly aware that the detenu was in jail but also noted the circumstances on the
\nbasis of which he was satisfied that the detenu was likely to come out on bail
\nand continue to indulge himself in the smuggling activities.   It,  therefore,
\ncannot  be  said that there was no compelling reasons justifying the detention
\ndespite the fact that the detenu is already in custody.  …”\n<\/p>\n
        10.  In the decision reported in  1994  Supp.    (1)  S.C.C.    597  (
\nRivadeneyta Ricardo Agustin  vs.   Govt.  of Delhi), the Supreme Court<\/a> held as
\nunder:\n<\/p>\n
        “8.  The above statement merely  speaks  of  a  “possibility”  of  the
\ndetenu’s release  in  case  he  moves the bail petition.  It neither says that
\nsuch release was likely or that it was imminent.    Evidently,  the  statement
\nfalls  short of the requirement enunciated by this Court in Kamarunnissa (1991
\n(1) S.C.C.  128 = 1991 S.C.C.  (Cri) 88).  Even in the return  filed  in  this
\npetition,  the authority has not stated (in response to Ground ‘B’ of the writ
\npetition) that there was material before him upon which he was satisfied  that
\nthe petitioner was likely to be released or that such release was imminent.\n<\/p>\n
        …\n<\/p>\n
        9.  ….\n<\/p>\n
        10.  …\n<\/p>\n
        11.   In the circumstances, we must hold that the principle enunciated<\/p>\n
by this Court in Kamarunnissa vs.  Union of India<\/a> ( 1991 (1) S.C.C.   1  28  =
\n1991 S.C.C.  (Cri) 88) squarely applies and the order is liable to be quashed.
\nIt is accordingly quashed.”\n<\/p>\n
        11.  In 1994  S.C.C.    (Cri)  482 (Veeramani vs.  State of T.N.), the
\nSupreme Court<\/a> held as follows:\n<\/p>\n
        “7.  Learned counsel, however, submitted that  by  making  a  sweeping
\nstatement  that the petitioner is likely to be released on bail, the detaining
\nauthority cannot pass a detention order and when there is no likelihood of his
\nbeing released on bail  from  custody,  the  order  of  detention  is  illegal
\ninasmuch as there is no proper application of mind.  …..\n<\/p>\n
        …..\n<\/p>\n
        8.   But  in  the  instant  case what we have to mainly see is whether
\nthere was awareness in the mind of the detaining authority that the detenu  is
\nin custody and that he had reason to believe that he is likely to be released.
\nThe grounds do disclose that the detaining authority was aware that the detenu
\nis  in custody and it is further mentioned that he was also aware that bail is
\nusually granted by the courts in such cases and it is further emphasised  that
\nthere is ‘imminent possibility’ of the detenu coming out on bail.\n<\/p>\n
        ….\n<\/p>\n
Therefore  it  cannot be said that the detaining authority has not applied its
\nmind to this aspect.  …”\n<\/p>\n
        12.  In the decision reported in 1995 (1) L.W.  (Crl)  149  (Vinayagam
\nvs.   The  District  Magistrate and Collector of N.A.Ambedkar Dist., Vellore &
\nAnother), the Division Bench of this Court would hold as follows:\n<\/p>\n
        “3.  …..  In the Tamil grounds, all that the Detaining Authority has
\nstated is that the detenu may file a bail application and if he  came  out  on
\nbail, he  will  indulge  in  future  prejudicial  activities.    Nowhere,  the
\ndetaining authority has stated that there was an imminent possibility  of  his
\nbeing  released on bail or there was such a likelihood, which would then allow
\nthe detenu to remain at large making it possible for him to indulge himself in
\nfuture prejudicial activities.  So long as that vital link is missing, on  the
\nlaw laid  down  by the Supreme Court in Rivadeneyta Ricardo Agustin vs.  Govt.
\nof Delhi<\/a> (1994 S.C.C.  (Cri) 354), the detenu is bound to succeed.”\n<\/p>\n
        13.  The Apex Court, in the decision reported in 2001 (1) S.C.C.   341
\n(Amritlal vs.  Union Govt.) held as follows:\n<\/p>\n
        “As held in Binod Singh case (1986 (4) S.C.C.  416), if a person is in
\ncustody  and there is no imminent possibility of his being released therefrom,
\nthe power of detention should not ordinarily be  exercised.    There  must  be
\ncogent material before the officer passing the detention order that the detenu
\nis likely  to  be  released  on  bail.    The inference must be drawn from the
\navailable material on record and must not be the ipse  dixit  of  the  officer
\npassing the  order  of  detention.    In the present case the requirement that
\nthere was likelihood of the detenus being released on bail was,  however,  not
\navailable in  the  reasoning  as  provided  by  the  officer  concerned.   The
\nreasoning available is the “likelihood of his moving an application for  bail”
\nwhich is  different  from “likelihood to be released on bail”.  This reasoning
\nis not sufficient  compliance  with  the  requirements  as  laid  down.    The
\navailable  cogent  material  in  this case was the likelihood of having a bail
\napplication moved in the matter but not obtaining a bail  order.    Therefore,
\nthe detention order is liable to be quashed.”\n<\/p>\n
        14.  In  2003  M.L.J.    (Crl)  652,  a  Division  Bench of this Court
\nobserved as follows:\n<\/p>\n
        9.  ….  The counsel for the  petitioner  has  not  pointed  out  any
\njudgment  positively  holding  that  the  expression  “imminent”, is a must or
\nmandatory.  The said expression could not be substituted by any word or  words
\n“meaning  that  the “release on bail was likely” in the immediate future or at
\nthe earliest.  Such a meaning should be conveyed in the detention order and it
\nmust be shown that the  Detaining  Authority  before  passing  the  order  was
\nsatisfied about the need to pass the order.\n<\/p>\n
        (paragraph 13  of  the Kamarunnissa vs.  Union of India<\/a> (1991 (1) S.C.
\nC.  (Crl.) 88 is extracted in the decision)\n<\/p>\n
        10.  ….\n<\/p>\n
        11.  …\n<\/p>\n
        12.  The above extract  will  show  that  the  usage  of  the  word  ”
\nimminent” is  not  absolutely essential.  It would be sufficient even to state
\nthat the detenu was likely to be released on moving a petition for bail.   …
\n“.\n<\/p>\n
        15.   In  a  Division  Bench  decision  of this Court reported in 2004
\nM.L.J.  (Crl.) 739 (Mohammed Meeran, Chennai vs.  State of Tamil Nadu),<\/a> it  is
\nheld as follows:\n<\/p>\n
        “8.   Following  the ratio of the aforesaid decision, (Binod Singh vs.
\nDistrict Magistrate, Dhanabad (1964 (4) S.C.C.  416), in our opinion,  in  the
\npresent case, the order of detention is required to be set aside on account of
\nthe  fact  that  there  has  been  non-application  of  mind  by the detaining
\nauthority who has recited about the possibility of the detenu  being  enlarged
\non  bail,  but  there  is nothing to indicate that the detaining authority had
\nconsidered about  the  possibility  of  the  detenu  being  released  on  bail
\n“imminently”.  ”\n<\/p>\n
        16.  Having regard to the various above citations on the point raised,
\nwe  find it appropriate to set down the following gist of conclusions referred
\nto above:\n<\/p>\n
        (i) A detention order can validly be passed even  in  the  case  of  a
\nperson who  is  already  in  custody.  In such a case, it must appear from the
\ngrounds that the authority was aware that the detenu was already in custody.\n<\/p>\n
        (ii) When such awareness is there, then it should further appear  from
\nthe  grounds that there was enough material necessitating the detention of the
\nperson in custody.\n<\/p>\n
        (iii) If there is a possibility of the detenu being  released  and  on
\nbeing  so  released,  he is likely to be indulge in prejudicial activity, then
\nthat would be one such compelling necessity to pass the detention order.\n<\/p>\n
        (iv) If the authority is bona fide satisfied that  such  detention  is
\nnecessary, he can make a valid order of detention a few days before the person
\nis likely to  be  released.   (emphasis supplied).  The antecedent history and
\nthe past conduct on which the order of detention would  be  based,  would,  in
\nsuch  a  case,  be  proximate  in  point  of  time  and  would have a rational
\nconnection with the conclusion drawn by the authority that  the  detention  of
\nthe person after his release is necessary.\n<\/p>\n
        (v)  The reasonableness of the satisfaction of the detaining authority
\ncannot be questioned in a Court of law for the reason that the satisfaction of
\nthe detaining authority is his subjective satisfaction; the  adequacy  of  the
\nmaterial  on  which  the  said  satisfaction  purports  to rest also cannot be
\nexamined in a Court of law.\n<\/p>\n
        (vi) There must be awareness of  the  facts  necessitating  preventive
\ncustody of  a person for social defence.  If a man is in custody, and there is
\nno imminent possibility  of  his  being  released,  the  power  of  preventive
\ndetention should not be exercised.\n<\/p>\n
        (vii) If there are cogent materials for thinking that the detenu might
\nbe released, then these should have been made apparent.\n<\/p>\n
        (viii) The mere statement that the possibility of the detenu’s release
\nin case he moves a bail petition, would not satisfy the mandatory requirement.
\nThe  detaining  authority  must assert that such release was likely or that it
\nwas imminent.\n<\/p>\n
        (ix) Similarly, the statement that “likelihood of  the  detenu  moving
\napplication  for  bail  necessitating for detention”, would not be sufficient,
\nsince the same is different from the likelihood to be released on bail,  which
\nis the essential requirement to make the detaining authority to pass the order
\nof detention.\n<\/p>\n
        (x) The  usage of the word “imminent” is not absolutely essential.  No
\ndecision would say that the expression “imminent” is a must or mandatory.   In
\nother  words,  the  said  word  “imminent” could be substituted by any word or
\nwords meaning that “release on bail was likely” or “in the  immediate  future”
\nor  “at  the  earliest”  Only when such a meaning is conveyed in the detention
\norder, then there is a need for the detaining authority to pass the  order  of
\ndetention to arrive at the subjective satisfaction.\n<\/p>\n
        17.   In  the light of the above ratio laid down by the Supreme Court,
\nwe have to see whether the detention order in  question  contained  the  basic
\ningredient “imminent possibility of the detenu being released on bail”.\n<\/p>\n
        18.   Let  us quote the relevant statement as contained in paragraph 5
\nof the grounds of detention:\n<\/p>\n
        “5.  I am aware that Thiru.Elangonambi @ Elango @ Siva @ Sivakumar has
\nbeen remanded to judicial custody upto 23.8.2004 and lodged at Special Prison,
\nPoonamallee, Chennai-56 in connection with the ground case  in  Cr.No.372\/2004
\nand Cr.No.329\/2004.    There is possibility of moving a bail and coming out on
\nbail by filing bail application in the Court.  I am also aware that in similar
\ncaes accused are enlarged by the same Court or the superior Court after  lapse
\nof some  time.    And if he comes out on bail, he will indulge in such further
\nactivities in future as well, which will be prejudicial to the maintenance  of
\nthe public order.”\n<\/p>\n
        19.   Now,  we have to see as to whether there is any statement by the
\ndetaining authority in the above passage  indicating  with  reference  to  the
\nimminent  possibility  of  the  detenu  being  released  on  bail, so as to be
\nprevented by passing the detention order.\n<\/p>\n
        20.  As indicated above, the detaining authority may use  the  word  ”
\nimminent” or  any  word  equivalent  to  the  same.  Let us see the Dictionary
\nmeaning of the word “imminent” so as  to  find  out  whether  any  other  word
\nequivalent to the word “imminent” has been used in the relevant passage of the
\ngrounds of detention.\n<\/p>\n
        21.  The following are the equivalent words for the word “imminent” as
\nfound from various Dictionaries:\n<\/p>\n
        (i) about to happen;\n<\/p><\/blockquote>\n
        (ii) likely to happen immediately;\n<\/p><\/blockquote>\n
        (iii) likely to happen very soon.<\/p><\/blockquote>\n
        22.   A  perusal  of paragraph 5 of the grounds of detention extracted
\nabove would never convey the expression “imminent possibility  of  the  detenu
\nbeing  released  on  bail” or “likelihood of the detenu coming out on bail” or
\n“release on bail was likely” or “release on bail in the immediate  future”  or
\n“release  on bail at the earliest” indicating that the release would likely to
\nhappen very soon.  It has been merely stated in paragraph 5 of the grounds  of
\ndetention  that  “There is possibility of moving a bail and coming out on bail
\nby filing bail application in the Court.” Whether this is enough?  Our  answer
\nwould be emphatic “no”.\n<\/p>\n
        23.   The  grounds  of detention would indicate that the detenu was in
\nremand from 26.7.2004 in respect of two  cases,  one  in  Crime  No.372\/20  04
\nregistered for the offences under Sections 294-B, 307, 506 (ii) IPC in respect
\nof  the  occurrence  that  took  place  on  26.7.2004,  and  another  in Crime
\nNo.329\/2004 registered for the offences under Section 3 97 IPC and Sections  4
\nand  5 of the Explosive Substances Act in respect of the occurrence which took
\nplace on 12.7.2004.  Admittedly, both these  offences  are  serious  offences.
\nUpto  16.8.2004,  the  date  of  the  order  of  detention,  there was no bail
\napplication filed by the detenu.\n<\/p>\n
        24.  In the light of these two factors, namely (i) the detenu  was  in
\nremand  in  two  cases  registered  for  serious  offences  and  (ii)  no bail
\napplication was filed, the detaining authority must necessarily arrive at  the
\nsubjective  satisfaction  that  there  is  “imminent possibility of the detenu
\nfiling bail application in both these cases and there  is  likelihood  of  the
\ndetenu  being  released on bail, and consequently, the detention order becomes
\nnecessary”.  Admittedly, this is not reflected in the grounds of detention.\n<\/p>\n
        25.  We are not for a moment inclined to observe that  merely  because
\nthere  are two cases of serious offences, it would be difficult to get bail in
\nthose two cases.  Similarly, merely because the applications for bail have not
\nbeen filed in these cases in spite of the fact that 20 days have  elapsed,  we
\ncannot  hold  that the detaining authority cannot pass the order of detention.
\nBut we must make it clear that in the light of the above fact  situation,  the
\ndetaining  authority,  all  the  more  reason,  shall assert in the grounds of
\ndetention that “there is imminent possibility of moving a bail application and
\nthe likelihood of the detenu being released on  bail”  on  the  basis  of  the
\nmaterials  from  which  the detaining authority would arrive at the subjective
\nsatisfaction.\n<\/p>\n
        26.  We are conscious about the settled position of law that we cannot
\nbe called upon to go into the adequacy of  the  materials  placed  before  the
\ndetaining  authority  to  arrive at the subjective satisfaction that there was
\nimmediate or likelihood  of  the  release  of  the  detenu  necessitating  the
\ndetention order.    But  what  we  want  to  emphasise  is that the subjective
\nsatisfaction arrived at by the detaining authority with regard to the imminent
\nor likelihood of the detenu being released on  bail,  shall  be  expressed  in
\nclear terms  in  the  grounds  of  detention.    If  the  said expression with
\nreference to the immediate release is apparently absent, then, it  has  to  be
\nheld  that  non-application of mind on the part of the detaining authority, is
\nquite apparent.\n<\/p>\n
        27.  In the light of what is stated above,  since  there  is  no  such
\nexpression  in  the  grounds of detention, we are constrained to conclude that
\nthe detaining  authority,  in  the  instant  case,  has  never  reflected  his
\napplication  of  mind  and  consequently,  the  impugned order of detention is
\nliable to be quashed.\n<\/p>\n
        28.  Accordingly, the impugned order of detention  is  quashed.    The
\nhabeas corpus  petition  is  allowed.    The  detenu  is directed to be set at
\nliberty forthwith, unless he is required in connection with any other case.\n<\/p>\n
Index:  Yes<\/p>\n
Internet:  Yes<\/p>\n
cs<\/p>\n
To\n<\/p>\n
1.  The Secretary to Government,
\nDepartment of Prohibition & Excise,
\nFort St.George, Chennai.\n<\/p>\n
2.  The District Magistrate and District Collector,
\nCuddalore & District.\n<\/p>\n
3.  The Superintendent of Central Prison, Chennai.\n<\/p>\n
4.  The Joint Secretary to Government,
\nPublic (Law and Order),
\nFort St.Goerge, Chennai-9.\n<\/p>\n
5.  The Public Prosecutor, High Court, Madras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court A.Thirumalvalavan vs The Government Of Tamil Nadu on 6 December, 2004 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 & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-217443","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nA.Thirumalvalavan vs The Government Of Tamil Nadu on 6 December, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/a-thirumalvalavan-vs-the-government-of-tamil-nadu-on-6-december-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"A.Thirumalvalavan vs The Government Of Tamil Nadu on 6 December, 2004 - 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