P. Valli vs The District Magistrate and District Collector and The Secretary to Government, Prohibition and Excise Department

P.K. Misra, J.—The wife of the detenu has filed this Habeas Corpus Petition challenging the order of detention dated 2.11.2006 passed by

the Commissioner of Police, Chennai City, u/s 3(1) read with 3(2) 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), hereinafter referred to as ""the Act"".

The detenu came to the adverse notice of the police in four adverse cases. First adverse case relates to Chunambedu Police Station Cr. No.

517/1995 for an offence u/s 324 IPC, which is pending trial, second adverse case is Chunambedu Police Station Cr. No. 234/2001 for the

offence registered under Sections 147, 148, 341, 302 IPC r/w. 149 IPC., third adverse case is Chunambedu Police Station Cr. No. 191/2003 for

the offence registered under Sections 147, 148, 341, 427, 307 IPC r/w. 3(1) TNPPD Act and the fourth adverse case is Chunambedu Police

Station Cr. No. 257/2003 for the offence registered under Sections 147, 148, 326, 307, 302 IPC. The occurrence relating to ground case, on the

basis of which the order of detention has been passed, allegedly took place on 27.8.2006. Ground case has been registered under Sections 147,

149, 307 IPC read with Sections 3 & 5 of the Indian Explosive Substances Act, 1908. The detenu was arrested on 20.10.2006. In the aforesaid

background, the detaining authority came to the conclusion that detenu was a Goonda within the meaning of the Act and it was necessary to detain

him to prevent him from acting in a manner prejudicial to the maintenance of public order. The detaining authority concluded:

5(i) I am aware that Thiru Purushothaman is in remand in Chunambedu Police Station Cr. No. 372/2006 and has not move any bail application. I

am also aware that there is a real possibility of his coming out on bail by filing a bail application before the same or Higher Court since in similar

cases bails are granted by the concerned Court or Higher Court after lapse of time. If he comes out on bail he will indulge in future activities which

will be prejudicial to the maintenance of Public Order.

Similarly in paragraph 5(ii) it was indicated:

5(ii) I am aware that Thiru Purushothaman was arrested on 20.10.2006 by the Inspector of Police, Chunambedu Police Station and he was

produced before the Judicial Magistrate upto 04.11.2006 and lodged at Central Prison, Chennai as a remand prisoner. He has not moved any bail

petition so far. But I am aware that there is a real possibility of his coming out on bail by filing a bail application before the same or higher court. I

am also aware that in such cases bail is granted after a lapse of time and if the detenu is let to remain at large, he is likely to indulge in such further

prejudicial activities in future as well and therefore there is a compelling necessity to pass this order of detention with a view to prevent him from

indulging in such prejudicial activities in future.

Learned Counsel appearing for the petitioner, while assailing such order of preventive detention, has contended that the detaining authority has

come to the conclusion that the detenu is likely to be released on bail without any cogent material and on the basis of mere ipse dixit of the

detaining authority. It has been further submitted that the conclusion of the detaining authority that ""I am also aware that there is real possibility of

his coming out on bail by filing bail application before Sessions Court or High Court since in similar cases bails are granted by the Sessions Courts

or High Court."" is the mere ipse dixit of the detaining authority without any material on record and more particularly keeping in view the nature of

allegations and the fact that investigation was still in progress and even there was no reasonable possibility of obtaining statutory bail contemplated

u/s 167(2) proviso of Cr.P.C. as the period stipulated for completion of the investigation was far remote. In this connection, learned Counsel

appearing for the petitioner has invited our attention to several decisions of the Supreme Court as well as the Full Bench and other Division Bench

decisions of this Court in Rameshwar Shaw Vs. District Magistrate, Burdwan and Another, , Binod Singh Vs. District Magistrate, Dhanbad, Bihar

and Others, ; Rajesh Gulati Vs. Govt. of N.C.T. of Delhi and Another, (2006) 1 M.L.J. (Crl.) 539 T.V. Saravanan alias S.A.R. Prasanna

Venkatachariar Chaturvedi v. State, Through Secretary and Anr., (2006) 9 SCC 711 A. Shanthi (Smt) v. Government of Tamil Nadu and Ors.

and the Full Bench decision in 2005 (4) CTC 497 K. Thirupathi v. District Magistrate and District Collector, Tiruchirapalli District at Tiruchirapali

and Anr. and also the Division Bench decisions of this Court including the HCP. No. 1303 of 2006 disposed of on 27.6.2007, HCP. Nos. 46, 52,

74, 79 and 131 of 2007 date 19.6.2007.

Legality of the conclusion of the detaining authority is required to be examined in the light of the decisions of the Supreme Court as well as the

Full bench decision of this Court and several other unreported decisions noticed above.

It is important to note that detenu was allegedly involved in four other adverse cases out of which in two of the adverse cases, offence u/s 302

IPC has been committed. Even though from the grounds of detention or other materials on record it is not so apparent, it is obvious that the detenu

had been released on bail in all those four pending matters including two cases wherein offence u/s 302 IPC had been allegedly committed. There

cannot be any dispute that while considering the question of bail, a Court is ordinarily required to consider the background as well as the

antecedents of the petitioner and if it is found that a person is a hardened criminal, the Court is always loath to grant bail. Therefore, the bald

conclusion of the detaining authority that there was real possibility of the detenu coming out on bail since ""...in such cases bail is granted after a

lapse of time"" cannot be described anything, but mere ipse dixit of the detaining authority. It is of course true that in the ground case the alleged

offence was under Sections 147, 148, 307 IPC read with Sections 3 & 5 of the Indian Explosive Substances Act, which may not appear to be as

serious as offence u/s 302 IPC. Yet, it is difficult to accept the mere ipse dixit of the detaining authority that the detenu was likely to be released on

bail after lapse of sometime. Of course where the chargesheet is not filed within the stipulated period of 60 days or 90 days, as the case may be,

the accused in custody has right to be enlarged on bail notwithstanding seriousness of the allegations and notwithstanding the fact that he could

have been involved in some other offence. In the present case, that facility was not available inasmuch as the detenu was taken into custody in

connection with the ground case only on 20.10.2006 and the order of detention came to be passed on 2.11.2006, after a lapse of 12 days. The

statutory period available for filing chargesheet was still long way off and, therefore, it cannot be visualised that there was imminent possibility of the

detenu being enlarged on bail by availing the provision contained in Section 167(2) of the Code of Criminal Procedure.

Keeping in view these aspects, in our considered opinion, conclusion of the detaining authority that there was real possibility of the detenu being

released on bail, even though a bail application was yet to be filed, appears to be the mere ipse dixit of the detaining authority and there is no

material far less any cogent material in support of such conclusion.

Learned Counsel for the respondents has placed strong reliance upon the decisions of the Supreme Court reported in (2006) 3 SCC (Cri) 17

Ibrahim Nazeer v. State of Tamil Nadu and Anr., (2006) 3 SCC (Cri) 50 Senthamil Selvi v. State of Tamil Nadu and Anr. and (2006) 3 SCC

(Cri) 324 A. Geetha v. State of Tamil Nadu and Anr.

In (2006) 3 SCC (Cri) 17 Ibrahim Nazeer v. State of Tamil Nadu and Anr., the detention was under COFEPOSA Act. The only contention

was to the effect that the High Court was not justified in upholding the conclusion of the detaining authority regarding imminent possibility of the

detenu coming out on bail, more particularly when the detenu had not filed any bail application after withdrawal of the first bail application. The

Supreme Court observed:

It has to be noted that whether prayer for bail would be accepted depends on the circumstances of each case and no hard-and-fast rule can be

applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on

bail. The conclusion that the detenu may be released on bail cannot be an ipse dixit of the detaining authority. On the basis of materials before it,

the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. That is his subjective satisfaction based

on materials. Normally, such satisfaction is not to be interfered with. On the facts of the case, the detaining authority has indicated as to why he

was of the opinion that there is likelihood of the detenu being released on bail. It has been clearly stated that in similar cases, orders granting bail

are passed by various courts. The appellant has not disputed the correctness of this statement. Strong reliance was placed by learned Counsel for

the appellant on Rajesh Gulati v. Govt. of NCT of Delhi. The factual scenario in that case was entirely different. In fact, five bail applications filed

had been already rejected. In that background this Court observed that it was not a ""normal"" case. The High Court was justified in rejecting the

stand of the appellant.

In (2006) 3 SCC (Cri) 324 A. Geetha v. State of Tamil Nadu and Anr., the detenu was detained u/s 3(2) of the Tamil Nadu Prevention of

Dangerous Activities of Bootleggers, Drug-Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates

Act, 1982, on the allegation that detenu was indulging in immoral trafficking. In the appeal, conclusion about the imminent possibility of being

released on bail was under challenge. The Supreme Court made similar observations:

It has to be noted that whether prayer for bail would be accepted depends on circumstances of each case and no hard-and-fast rule can be

applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on

bail. The conclusion that the detenu may be released on bail cannot be ipse dixit of the detaining authority. On the basis of materials before him, the

detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. That is his subjective satisfaction based on

materials. Normally, such satisfaction is not to be interfered with. On the facts of the case, the detaining authority has indicated as to why he was of

the opinion that there is likelihood of the detenu being released on bail. It has been clearly stated that in similar cases, orders granting bail are

passed by various courts. The appellant has not disputed the correctness of this statement. Strong reliance was placed by learned Counsel for the

appellant on Rajesh Gulati v. Govt. of NCT of Delhi. The factual scenario in that case was entirely different. In fact, five bail applications filed had

been already rejected. In that background this Court observed that it was not a ""normal"" case. The High Court was justified in rejecting the stand

of the appellant. See Ibrahim Nazeer v. State of T.N. And Sethamilselvi v. State of T.N.

Similar observations had also been made in (2006) 3 SCC (Cri) 50 Senthamilselvi v. State of Tamil Nadu and Anr.

A careful reading of these decisions indicates that conclusion of the detaining authority regarding imminent possibility of being released on bail

was based on materials and as such was not liable to be interfered with as conclusion of the detaining authority on the basis of materials on record

regarding imminent possibility of coming out on bail should not be interfered with. At the same time, the Supreme Court emphasised that such

conclusion should not be based on the mere ipse dixit of the detaining authority, but on the other hand should be based on materials on record. As

a matter of fact, in all these three cases, the detaining authority had come to the conclusion that in similar cases orders granting bail are passed by

various courts and the Supreme Court observed that the appellant ""had not disputed"" the correctness of such statement. In other words, it is very

much clear that the appellant in those cases had not disputed the correctness of the statement that in similar cases bail orders are granted. As a

matter of fact, keeping in view the nature of offence in the first two cases noticed by us, one under the Customs Act and the other under Prevention

of Immoral Traffic Act, it can be readily concluded that grant of bail is the rule rather than the exception and obviously that is the reason why the

appellant had not disputed the correctness of the statement that in similar cases bail orders are granted by the courts.

We are unable to persuade ourselves to come to the conclusion that the Supreme Court in the above three decisions intended to depart from

the well settled principle of law recognized by series of decisions, which have already been noticed. However, on the peculiar facts situation, the

Supreme Court had concluded that conclusion of the detaining authority regarding possibility of being released on bail was based on materials on

record and, therefore, not to be interfered with.

For the aforesaid reasons, the Habeas Corpus Petition is allowed and the detention order is quashed and the detenu is set at liberty forthwith

unless his presence is required in connection with any other case.