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Judgment
P.K. Misra, J.—Heard Mr. C. Prakasam, learned Counsel for the petitioner and Mr. M.Babu Muthu Meeran, learned Additional Public
Prosecutor for the respondents.
The order of preventive detention has been challenged by the son of the detenu. The detention order was passed on 12.11.2006 on the ground
that the detenu is a black marketeer within the meaning of Section 3(2)(a) read with 3(1) of the Prevention of Black Marketing and Maintenance of
Supplies of Essential Commodities Act, 1980 (Act No. 7 of 1980).
At the time of hearing of the matter, the learned Counsel for the respondent submitted that a Habeas Corpus Petition had been filed on behalf of
the detenu earlier and the same has been rejected. As such, this petition should be rejected on the ground of res judicata. We have gone through
the order passed earlier rejecting the HCP. The only contention in the said HCP was that the detenu was not informed of his right to make a
representation. Such contention was negatived by the Division Bench as on material it was found that such contention was not sustainable. The
contention now raised is different. It is now contended that the satisfaction of the detaining authority regarding the possibility of the detenu coming
out of bail in connection with the criminal case is mere ipse dixit of the detaining authority and there is absolutely no material to come to any such
conclusion. It appears that in para 3 of the grounds of detention it is recited that,
Thiru.Sekar is in Sub-Jail, Usilampatti. He is very likely to come out on bail soon and again he is likely to indulge in such further prejudicial
activities in future and therefore, there is a compelling necessity to pass an order of detention against Thiru.Sekar with a view to prevent him from
indulging in such prejudicial activities in future...
It is apparent that in the previous HCP, this ground has not been raised. It is now well settled that the doctrine of constructive res judicata is not
applicable to the preventive detention as has been observed by Division Bench of this Court in HCP No. 663 of 2006 on 30.11.2006. Since the
ground urged is different from the ground which was considered earlier, we are inclined to consider the matter on merits.
On going through the recital which has been extracted above, it is clear that the detaining authority simply concluded that the detenu is likely to
be released on bail very soon without indicating on what basis he came to such conclusion. It has been held by the Full Bench of this Court in a
decision reported in 2005 (2) L.W. (Cri.) 946 (K. Thirupthi v. District Magistrate and District Collector, Tiruchirappalli District and Anr.) that
while arriving at a particular conclusion relating to the possibility of the detenue being released on bail, the mere ipse dixit will not be sufficient and
there should be some material in support of such conclusion. In the present case on hand, we are convinced that there is no materials for coming to
the conclusion that the detenue was likely to be released on bail very soon and therefore, the order of detention is quashed.
The Habeas Corpus Petition is allowed. Impugned order of detention is set aside. The detenue is directed to be set at liberty forthwith, unless he
is required in connection with any other case.