Arumugam vs State of Tamil Nadu and Others

Dr. S. Tamilvanan, J.—Challenge is made to the order of detention passed by the second respondent vide C.M.P. No. 25/GOONDA/C2/2014 dated 18.11.2014, whereby the detenu/the son of the petitioner herein, by name, Anand, Son of Arumugam, aged 22 years, was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "GOONDA".

Though many grounds have been raised in the petition, Mr. R. Sankarasubbu, the learned counsel appearing for the petitioner, confines his argument only in respect of non-application of mind on the part of the detaining authority in passing the order of detention.

According to the learned counsel appearing for the petitioner, the detenu is in remand in the ground case in Cr. No. 489/2014 and in the second adverse case in Cr. No. 639/2014 and the detenu has not moved any bail application in the ground case as well as in the second adverse case as on the date of the passing of the detention order. He would also contend that the detaining authority has not mentioned as to whether the relatives are taking steps to take the detenu out on bail by filing bail application in the said cases. When no bail application is filed, there is no real possibility of the detenu coming out on bail. No cogent materials are available before the Detaining Authority to conclude/to apprehend that the detenu is likely to get bail in the ground case and in the second adverse case and there is imminent possibility of the detenu coming out on bail in the said case. Hence, it is stated that the Detaining Authority has passed the impugned detention order in total non-application of mind and the subjective satisfaction arrived at by the Detaining Authority that there is real possibility of the detenu coming out on bail in the adverse case and in the ground case is a mere ipse dixit without any cogent materials. In support of his contention, he relies on the judgments of the Hon''ble Apex Court reported in [a] T.V. Saravanan @ S.A.R. Prasana Venkatachaariar Chaturvedi Vs. State through Secretary and Another, AIR 2006 SC 1462 : (2006) CriLJ 1619 : (2006) 2 JT 433 : (2006) 2 SCALE 358 : (2006) 2 SCC 664 : (2006) 1 UJ 598 : (2006) AIRSCW 2849 : (2006) 4 Supreme 578 ; [b] Velumurugan @ Velu Vs. The Commissioner of Police and Another, (2005) 1 CTC 577 ; [c] Huidrom Konungjao Singh Vs. State of Manipur and Others, AIR 2012 SC 2002 : (2012) CriLJ 2935 : (2012) 5 SCALE 628 : (2012) 7 SCC 181 : (2012) AIRSCW 3043 : (2012) 4 Supreme 151 and [d] S. Andal Vs. The District Magistrate and District Collector and The State of Tamil Nadu .

Per contra, the learned Additional Public Prosecutor would submit that the order of detention has been passed on cogent and sufficient materials and the same cannot be interfered with at the instance of the petitioner. Therefore, he submits that the Habeas Corpus Petition does not merit any consideration and the same is liable to be dismissed.

We have heard the learned counsel for both sides with regard to the facts and citation.

As evidenced from paragraph No. 4 of the grounds in the order of detention, the detenu is in remand in the ground case [Cr. No. 489/2014] and he has not filed any bail application in the said ground case. The detaining authority has not mentioned about the 2nd adverse case as to whether the detenu has filed bail application or not as on the date of passing of the detention order. There is also no mention about the relatives taking steps to take the detenu out on bail by filing bail application in the said cases. When no bail application is filed, there is no real possibility of the detenu coming out on bail. Therefore, the subjective satisfaction arrived at by the detaining authority that there is real possibility of his coming out on bail in the ground case would be a mere ipse dixit and that would vitiate the order of detention and the same is indicative of total non-application of mind on the part of the Detaining Authority. Therefore on this ground, the impugned order is liable to be set aside. Hence, the order of detention cannot be sustained in the eye of law and the same is liable to be set aside.

In this connection it is useful to refer the judgment of the Hon''ble Apex Court relied on by the learned counsel for the petitioner.

"[a] In T.V. Saravanan @ S.A.R. Prasana Venkatachaariar Chaturvedi Vs. State through Secretary and Another, AIR 2006 SC 1462 : (2006) CriLJ 1619 : (2006) 2 JT 433 : (2006) 2 SCALE 358 : (2006) 2 SCC 664 : (2006) 1 UJ 598 : (2006) AIRSCW 2849 : (2006) 4 Supreme 578 , wherein the Hon''ble Apex Court has held as follows:

"The Courts had rejected the bail applications moved by the appellant 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 mere 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."

[b] In 2005 (1) CTC 577 (Velmurugan @ Velu v. The Commissioner of Police), it has been held as follows:

"3....... unless there is a clear expression by the detaining authority in the grounds of detention with reference to the imminent possibility of the detenu being released on bail by filing bail application, the detaining authority would not choose to pass the detention order. In order to prevent the detenu from committing the acts, which would be disturbance to public order and public health, the detaining authority shall consider the materials and on the basis of subjective satisfaction that there is imminent possibility of the detenu coming out on bail or likelihood of the detenu being released on bail, the detaining authority may pass such an order under Tamil Nadu Act 14 of 2080. When such an essential requirement, namely, the imminent possibility of the detenu coming out on bail, is absent, it has to be held that the order of detention is vitiated."

[c] In 2012 [7] SCC 181 [cited supra] which reads thus:-

In Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, (2011) 3 CTC 222 : (2011) 4 JT 392 : (2011) 2 RCR(Criminal) 527 : (2011) 4 SCALE 387 : (2011) 5 SCC 244 : (2011) 4 SCR 740 : (2011) 3 SCR 885 , this Court while dealing with the issue held :

"......A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored......

In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground."

14......... Thus, as the detenu in the instant case has not moved the bail application and no other co-accused, if any, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eyes of law."

[d] In S. Andal Vs. The District Magistrate and District Collector and The State of Tamil Nadu , it has been held as follows:

"Where a bail application filed by the detenu was pending before the Court and the Detaining Authority coming to the conclusion that there was a real possibility of the detenu coming out on bail, even prior to the passing of an order on bail application, held the detention order was passed without proper application of mind, rendering it vitiated."

It is a trite law that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of Constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Preventive detention is preventive and not punitive. When ordinary law of the land is sufficient to deal with, taking recourse to the preventive detention law is illegal.

In the light of the above said principles laid down by the Honourable Supreme Court and for the reasons stated above, the impugned order of detention is vitiated and the same is liable to be quashed.

In the result, this Habeas Corpus Petition is allowed. The impugned detention order is set aside. The detenu is directed to be released forthwith, unless his presence is required in connection with any other case.