{"id":34970,"date":"2011-08-04T00:00:00","date_gmt":"2011-08-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/muthulakshmi-vs-the-district-collector-and-on-4-august-2011"},"modified":"2014-06-11T13:40:58","modified_gmt":"2014-06-11T08:10:58","slug":"muthulakshmi-vs-the-district-collector-and-on-4-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/muthulakshmi-vs-the-district-collector-and-on-4-august-2011","title":{"rendered":"Muthulakshmi vs The District Collector And … on 4 August, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
Muthulakshmi vs The District Collector And … on 4 August, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 04\/08\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA\nAND\nTHE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN\n\nHCP(MD)No.282 of 2011\n\nMuthulakshmi\t\t\t\t\t...\tPetitioner\n\nVs\n\n1.The District Collector and District Magistrate\n  Tirunelveli  District\n\n2.The Secretary to Government, Home, Prohibition and\n  Excise Department, Secretariat, Chennai-9\t\t\t\n\n3.The Inspector of Police, Nanguneri Police Station\n  Tirunelveli  City \t\t\t\t...\tRespondents\n\nPrayer\n\nThis Habeas Corpus Petition is filed to issue a Writ of Habeas Corpus\nto call for records from the 1st respondent in MHS.Confdl.No.07\/2011 dated\n23.02.2011, to quash the same, to produce the detenu Murugan, aged about 39\nyears, S\/o.Sudalaikannu Thever, now detained in the Central Prison,\nPalayamkottai before this court and to set him at liberty forthwith.\n\n!For Petitioner \t...\tMr.N.Mohideen Basha\n^For Respondents\t...\tMr.P.Jyothi, APP\n\n:ORDER\n<\/pre>\n
(Order of the Court was made by ARUNA JAGADEESAN J.)
\n\t\tThe petitioner is the wife of the detenu.  The petitioner has come
\nforward with this Habeas Corpus Petition, seeking for the relief of quashing the
\nimpugned detention order dated 23.02.2011, slapped on her husband as “Goonda” as
\ncontemplated under the Tamil Nadu Prevention of Dangerous Activities of
\nBootleggers,  Drug Offenders, Forest Offenders, Goondas, Immoral Traffic
\nOffenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982 (Tamil Nadu
\nAct 14\/1982).\n<\/p>\n
\t\t2. Mr.N.Mohideen Basha, the learned counsel for the petitioner would
\nmainly contend that the impugned order of detention was passed even without
\nmentioning that there is “imminent possibility” or “real possibility” or “very
\nlikely” or “most likely” for the detenu to come out on bail. It is contended by
\nthe learned counsel for the petitioner that without any subjective satisfaction
\nand without any cogent material that the detenu is likely to be released on
\nbail, the impugned detention order was passed and hence, the same is vitiated.\n<\/p>\n
\t\t3. Per contra, Mr.P.Jyothi, the learned Additional Public Prosecutor
\nwould submit that there is no illegality or infirmity in the impugned order of
\ndetention. It is contended that the detaining authority has observed that since
\nthe bail petitions filed by the detenu in Cr.MP.No.1621\/2011 before the Judicial
\nMagistrate, Nanguneri and in Cr.MP.No.729\/2001 before the District Sessions
\nCourt, Tirunelveli are pending, there is possibility of the detenu getting bail
\nand that if he comes out on bail, he would further indulge in such activities in
\nfuture, which will be prejudicial to the maintenance of the public order and
\nhence, there is a compelling necessity to detain the detenu in order to prevent
\nhim from indulging in such activities, which are prejudicial to the maintenance
\nof public order under the provisions of the Tamil Nadu Act 14 of 1982  and the
\ndetaining authority had taken into consideration all the relevant factors to
\narrive at subjective satisfaction at the time of passing the impugned order of
\ndetention and as such, the detaining authority rightly passed the detention
\norder.\n<\/p>\n
\t\t4. The perusal of the impugned order of detention would reveal that
\nthere is absolutely no specific mentioning to the effect that there is “imminent
\npossibility” or “real possibility” or “very likely” or “most likely” for the
\ndetenu to come out on bail.  It is also relevant to note that the detaining
\nauthority has stated in paragraph No.6 of the impugned detention order as
\nhereunder:-\n<\/p>\n
“I am also aware that Thiru.Murugan filed a bail petition before the Judicial
\nMagistrate, Nanguneri in Cr.MP.No.1621\/2011 on 17.2.2011 in Moolaikaripatti
\nPolice Station (Cr.No.08\/2011) and the bail petition is yet to be disposed.  I
\nam aware that he is in remand in Moontradaipu Police Station Crime Number
\n12\/2001 and in this case he filed a bail petition before the District Sessions
\nCourt, Tirunelveli  in Cr.MP.No.729\/2001 on 18.2.2011 and the bail petition is
\nyet  to be disposed of.  In order to restrict him from indulging activities in
\nfuture, which will be prejudicial to the maintenance of public order, it is
\nnecessary that he has to be kept in judicial custody. Further, the recourse to
\nnormal criminal law would not have the desired effect of effectively preventing
\nhim from indulging in such activities, which are prejudicial to the maintenance
\nof the public order.  On the materials placed before me, I am satisfied that
\nThiru.Murugan is a ‘Goonda’ and there is a compelling necessity to detain him in
\norder to prevent him from indulging in acts which are prejudicial to the
\nmaintenance of public order under the provisions of the Tamil Nadu Act 14 of
\n1982.”\n<\/p>\n
\t\t5. The above finding of the detaining authority is based on mere
\nsurmises and conjectures.  Admittedly, the the bail applications filed by the
\ndetenu are pending and no order has been passed on the said bail applications.
\nBut, the detaining authority without any cogent material available on record has
\narrived at the conclusion that he will indulge in such activities, which are
\nprejudicial to the maintenance of public order.  In the absence of any materials
\non record, on the basis of which, the detaining authority could be satisfied
\nthat the detenu was likely to be released on bail, the mere ipse-dixit of the
\ndetaining authority is not sufficient to sustain the order of detention.\n<\/p>\n
\t\t6. At this juncture, it is relevant to refer the decision of the
\nHon’ble Apex Court in T.V.Saravanan alias S.A.R.Prasanna Venkatachariar
\nChaturvedi v. State, through Secretary and Another reported in 2006 (1) MLJ
\n(Crl) 539.  The Hon’ble Apex court in the said decision held as hereunder:
\n“The Courts had rejected the bail applications moved by the appellant and there
\nwas no material whatsoever to apprehend that he was likely to move a bail
\napplication or that there was imminent possibility of the prayer for bail being
\ngranted.  The “imminent possibility” of the appellant coming out on bail is mere
\nipse dixit of the detaining authority unsupported by any material whatsoever.
\nThere was no cogent material before the detaining authority on the basis of
\nwhich the detaining authority could be satisfied that the detenu was likely to
\nbe released on bail.  The inference has to be drawn from the available material
\non record. In the absence of such material on record the mere ipse dixit of the
\ndetaining authority is not sufficient to sustain the order of detention.”\n<\/p>\n
\t\t7. In Abdul Sathar Ibrahim Mani Vs. Union of India (AIR-1991-SC-
\n2261),  it is held as follows:-\n<\/p>\n
“Where the detenu was in custody at the time of passing an order of detention
\nwhat is strictly required is whether the detaining authority was aware of the
\nfact that the detenu was in custody, and if so was there any material to show
\nthat there were compelling reasons to order detention in spite of his being in
\ncustody.  These aspects assume importance because of the fact that a person who
\nis already in custody is disabled from indulging in any prejudicial activities
\nand as such the detention order may not normally be necessary.  Therefore, the
\nlaw requires that these two tests have to be satisfied in the case of such
\ndetention of a person in custody.”\n<\/p>\n
\t\t8. In yet another decision of the Honourable Supreme Court reported
\nin Ramesh Yadav Vs. District Magistrate, Etah and others (AIR-1986-SC-315), the
\nHonourable Supreme Court has observed as follows:-\n<\/p>\n
“Where the order of detention was passed because the detaining authority was
\napprehensive that in case the detenu was released on bail he would again carry
\non his criminal activities in the area, the same was not proper.  If the
\napprehension of the detaining authority was true, the bail application had to be
\nopposed and in case bail was granted, challenge against that order in the higher
\nforum had to be raised.  Merely on the ground that an accused in detention as an
\nunder trial prisoner was likely to get bail, an order of detention under the Act
\nshould not ordinarily be passed.”\n<\/p>\n
\t\t9.  The principles laid down in the decisions cited supra are
\nsquarely applicable to the facts of the present case.  In this case also, the
\ndetaining authority in the absence of any cogent material available on record
\nhas inferred that the detenu would be released  on bail and if he is released on
\nbail, he would indulge in such activities in future, which are prejudicial to
\nthe maintenance of public order.  There must be cogent material before passing
\nthe detention order that the detenu is likely to be released on bail. The
\ninference must be drawn from the available material on record and must not be
\nthe ipse-dixit of the officer passing the order of detention. Likelihood of
\ndetenu’s moving an application for bail application or the pendency of the bail
\napplication filed by the detenu is not a cogent material and detention order
\nbased on such material is liable to be quashed. The detaining authority before
\npassing the detention order must satisfy themselves that there is likelihood of
\nthe detenu being released on bail and that satisfaction ought to be reached on
\ncogent material.\n<\/p>\n
\t\t10.  Yet another contention was made by the learned counsel for the
\npetitioner that under Section 10 of the Tamil Nadu Prevention of Dangerous
\nActivities of Bootleggers,  Drug Offenders, Forest Offenders, Goondas, Immoral
\nTraffic Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982
\n(Tamil Nadu Act 14\/1982), the State Government should, within three weeks from
\nthe date of detention of a person under the order, place before the Advisory
\nBoard constituted by them under Section 9, the grounds on which the order has
\nbeen made and the representation, if any, made by the person affected by the
\norder.According to the learned counsel for the petitioner, the Government did
\nnot place the detention order before the Advisory Board as contemplated  under
\nSection 10 of the Act and thus, there was a breach of Section 10 of the Act.
\nTherefore, he would submit that the detention of the petitioner is illegal.\n<\/p>\n
\t\t11.  Section 10 of the Act reads thus:-\n<\/p>\n
“10. Reference to Advisory Board:-  In every case where a detention order has
\nbeen made under this Act, the State Government shall, within three weeks from
\nthe date of detention of a person under the order, place before the Advisory
\nBoard constituted by them under Section 9, the grounds on which the order has
\nbeen made and the representation, if any, made by the person affected by the
\norder, and in the case where the order has been made by an officer, also the
\nreport by such officer under sub section (3) of section 3.”\n<\/p>\n
\t\t12. There can be no doubt that the provisions under Section 10 of
\nthe Act are mandatory.  This court as well as the Honourable Supreme Court has,
\non more than one occasion, indicated in unmistakable terms that the safeguard
\navailable to the detenu without trial is what is guaranteed to him under Article
\n22 sub clause (5) of the Constitution.  The time schedule indicated in the Act
\nand the screening by the Advisory Board are in answer to this requirement.  The
\nHonourable Supreme Court in Khudi Ram Das Vs. State of West Bengal (AIR-1975-SC-\n<\/p>\n
550) said:-\n<\/p>\n
“The constitutional imperatives enacted in this article 22 are two-fold: (1) the
\ndetaining authority must, as soon as may be, that is, as soon as practicable
\nafter the detention, communicate to the detenu the grounds on which the order of
\ndetention has been made and (2) the detaining authority must afford the detenu
\nthe earliest opportunity of making a representation against the order of
\ndetention.  These are the barest minimum safeguards which must be observed
\nbefore an executive authority can be permitted to preventively detail a person
\nand thereby drown his right of personal liberty in the name of public good and
\nsocial security.”\n<\/p>\n
\t\t13.  Section 10 of the Act provides that the State Government has
\nthe obligation to cause the papers relating to the detention to be placed along
\nwith the representation, if made, within three weeks from the date of detention
\nbefore the Advisory Board.  Where a representation is not made with regard to
\nthe detention, the papers without the representation have to be placed before
\nthe Advisory Board within the time prescribed.  In case, a representation is
\nmade with reasonable time, the same has also to be promptly attended to and has
\nto be placed before the Advisory Board. When the reference is received and the
\ngrounds of detention are available, the Advisory Board proceeds to fix the date
\nof hearing for consideration of justification of the detention.\n<\/p>\n
\t\t14.  The procedure of the Advisory Board contained in Section 11 of
\nthe Act indicates that the Board has to consider the materials placed before it
\nand is entitled to call for such opinion as it may deem necessary from the State
\nGovernment or from any person concerned and after hearing the detenu, if he
\nwants to be heard in person, has to report to the appropriate Government within
\nseven weeks from the date of detention in the manner indicated in the remaining
\nsub sections of that Section. While dealing with this aspect of the matter, it
\nis to be borne in mind that Section 10 requires the reference to be placed
\nbefore the Board within three weeks and Section 11 requires the report to be
\nsubmitted to the Government within seven weeks. The legislative scheme in fixing
\nthe limit of three weeks in Section 10 and further limit of seven weeks in
\nSection 7 allows at least four weeks’ time to the Board to deal with the matter.\n<\/p>\n
\t\t15.  In the instant case, 15.3.2011 was the last date of expiry of
\nthree weeks from the date of the detention, but the Advisory Board has met on
\n30.3.2011 as per the averment made in the counter.  There has been an assertion
\non behalf of the State Government by the learned  Additional Public Prosecutor
\nthat the papers were placed before the Advisory Board only on 30.3.2011.  In the
\nface of above facts, the detention becomes illegal. In the light of the above
\nsaid principles laid down by the Honourable Supreme Court, the impugned order of
\ndetention is vitiated and the same is liable to be quashed.\n<\/p>\n
\t\t16. In the result, this Habeas Corpus Petition is allowed and the
\nimpugned detention order passed by the  1st respondent in MHS.Confdl.No.07\/2011
\ndated 23.02.2011 is hereby quashed and the detenu Murugan is directed to be set
\nat liberty forthwith, unless his detention is required in connection with any
\nother case.\n<\/p>\n
Srcm<\/p>\n
To<\/p>\n
1.The District Collector and District Magistrate
\n  Tirunelveli  District<\/p>\n
2.The Secretary to Government, Home, Prohibition and
\n  Excise Department, Secretariat, Chennai-9\t\t\t<\/p>\n
3.The Inspector of Police, Nanguneri Police Station
\n  Tirunelveli  City<\/p>\n
4.The Additional Public Prosecutor, Madurai Bench of
\n  Madras High Court, Madurai<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Muthulakshmi vs The District Collector And … on 4 August, 2011 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, […]<\/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-34970","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMuthulakshmi vs The District Collector And ... on 4 August, 2011 - 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\/muthulakshmi-vs-the-district-collector-and-on-4-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Muthulakshmi vs The District Collector And ... on 4 August, 2011 - 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