Jaya vs The Secretary to the Government

S. Rajeswaran, J.—Challenge is made to the order of detention passed by the second respondent vide Proceedings in Memo No. 1981/BDFGISSV/2013 dated 17.12.2013, whereby the husband of the petitioner by name Selvakumar, son of Paulpandi, aged 34 years, was ordered to be detained under the provisions 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) branding him as a "GOONDA".

As per the grounds of detention dated 17.12.2013, passed by the second respondent, the detenu came to adverse notice in the following cases:

Sl. No.

Name of the Police station and Crime No.

Section of law

i) Adverse case:

1

G2 Periyamedu Police Station Cr.No.982/2013

341, 323, 392 and 506[i] IPC

2

G1 Vepery Police Station Cr.No.858/2013

457 and 380 IPC

(ii) Ground Case:

1

G1 Vepery Police Station Cr.No.978/2013

341, 323, 336, 392, 397 and 506[ii] IPC

Though many grounds have been raised in the petition, Mr.R.Narendran, 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 has been in remand in the ground case in Cr.No.978/2013 registered by theG1 Vepery Police Station and in the adverse cases in Cr.Nos.982/2013 and 858/2013 registered by G2 Periyamedu Police Station and G1 Vepery Police Station respectively and the bail application filed by the detenu in the ground case before the learned Principal Sessions Judge, Chennai in Crl.MP.No.16702/2013 was pending and the detenu has not moved any bail applications in the adverse cases as on the date of the passing of the detention order. He would also contend that the detaining authority has placed reliance on the statement of the sponsoring authority to the effect that the relatives of the detenu are taking steps to take him out on bail by filing bail applications in the adverse cases. The learned counsel would add that admittedly, in this case, the detenu has not moved any bail application in the adverse cases and the bail application filed in the ground case was pending and he is in remand in the said cases. When no bail application is filed, there is no real possibility of the detenu coming out on bail and when a bail application is pending, then there is no presumption that the detenu would come 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 as well as in the adverse cases and there is no imminent possibility of the detenu coming out on bail in the said cases. The apprehension entertained in the mind of the detaining authority that there is a real possibility of detenu coming out on bail as the bail application filed in the ground case is pending is not justifiable for the reason that he has pre-judged the matter. Concedingly he could not foresee the nature of the order that would be passed by the Court. By the reason of pendency of the application, one could not easily come to the conclusion that the Court would certainly grant bail to the accused. 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 cases and that there is a likelihood of his coming out on bail 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, ; [b] Velumurugan @ Velu Vs. The Commissioner of Police and Another, ; [c] Huidrom Konungjao Singh Vs. State of Manipur and Others, and [d] 2008 [3] MLJ (Crl.) 144 [S. Andal Vs. District Magistrate and District Collector, Madurai District, Madurai and Another].

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.

Before adverting to the arguments of the counsel for both sides, we would like to reproduce the relevant portion of the grounds of the detention order, viz., paragraph 4, on which much reliance has been placed by the learned counsel appearing for the petitioner:

I am aware that Thiru Selvakumar is in remand in G2 Periyamedu Police Station Cr.No.982/2013, G1 Vepery Police Station Cr.Nos.858/2013 and 978/2013. He moved a bail application before the Principal Sessions Court, Chennai in Crl.MP.No.16702/2013 for G1 Vepery PS Cr.No.978/2013 and the same is pending. The sponsoring authority has stated that the relatives of Thiru Selvakumar are taking action to take him on bail in G2 Periyamedu Police Station Cr.No.982/2013 and G1 Vepery Police Station Cr.No.858/2013 before the appropriate Court. In a case registered at E1 Mylapore Police Station Cr.No.1283/2010 registered under sections 457 and 380 IPC bail was granted by the 18th Metropolitan Magistrate Court, Saidapet, Chennai in CrlMP.No.3340/2012. Similarly in a case registered at G1 Vepery Police Station Cr.No.122/2013 registered u/s. 341, 323, 336, 392, 397 and 506[ii] IPC bail was granted by the Principal Sessions Court, Chennai in Crl.MP.No.3345/2013. Hence, I infer that it is very likely of his coming out on bail in G1 Vepery PS Cr.No.978/2013 and there is real possibility of his coming out on bail in G2 Periyamedu Police Station Cr.No.982/2013 and G1 Vepery Police Station Cr.NO.858/2013 by filing bail application before the appropriate court, since in similar cases bails are granted by the Courts after a lapse of time. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of public order...............

As could be seen from the above ground in the order of detention, the detenu is in remand in the ground case [Cr.No.978/2013] and in the adverse cases [Cr.Nos.982/2013 and 858/2013] and he has not filed any bail applications in the said adverse cases and the bail application filed by the detenu in the ground case in Crl.MP.No.16702/2013 before the learned Principal Sessions Judge, Chennai, was pending as on the date of passing of the detention order. Merely stating that steps have been taken on behalf of the detenu by the relatives of the detenu to file bail applications in the adverse cases is not sufficient to pass an order of detention. Excepting recording a statement that the relatives of the detenu are taking steps to file bail applications, no other material are shown as to the steps taken to file bail applications in the adverse cases. When a bail application is pending, then there is no presumption that the detenu would come out on bail and when no bail application is filed, there is no imminent 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 adverse cases and that there is likelihood 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. As rightly contended by the learned counsel appearing for the petitioner the pendency of the bail application would not certainly enable the detaining authority to conclude that the Court would certainly grant bail to the accused. It is nothing but pre-judging the matter. Therefore on this ground also the impugned order is liable to be set aside. Further, the co-accused of the detenu in the case in Cr.No.858/2013 registered by G1 Vepery Police Station, has also not moved any bail application for the said crime number and therefore, there is no likelihood of either the detenu or his co-accused being released on bail in the said case in Cr.No.858/2013. 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, , 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 Velumurugan @ Velu Vs. The Commissioner of Police and Another, , 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 1982. 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 Huidrom Konungjao Singh Vs. State of Manipur and Others, which reads thus:-

In Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, , 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.

(emphasis supplied)

[d] In 2008 [3] MLJ (Crl.) 144 [S. Andal Vs. District Magistrate and District Collector, Madurai District, Madurai and Another], 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 facts and law, we have no hesitation in quashing the order of detention on the above mentioned grounds.

Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order in Memo No. 1981/BDFGISSV/2013 dated 17.12.2013 passed by the second respondent is set aside. The detenu, viz., Selvakumar, Son of Paulpandi, aged 34 years, is directed to be released forthwith unless his presence is required in connection with any other case.