Parameshwari 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 Proceedings in C3/D.O./23/2014 dated 17.10.2014 whereby the petitioner''s husband/detenu herein, viz., Gajendiran, son of Muthaiyan, aged 29 years, was ordered to be detained under the provisions of 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 17.10.2014, passed by the second respondent, the detenu came to adverse notice in the following cases:

i) Adverse Cases:

(ii) Ground Case:

Though many grounds have been raised in the petition, Mr.M.K. Raja, 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. 234/2014 registered by Annamalai Nagar Police Station and the detenu has not moved any bail application in the ground case as on the date of the passing of the detention order. But the detaining authority has arrived at the subjective satisfaction that there is imminent possibility of the detenu coming out on bail in the ground case based on the similar case where bail was granted to the accused, Arulprasath, by this Court in Crl.O.P. No. 14971/2014 on 3.7.2014 in respect of Crime No. 125/2014 for the offence under sections 3 and 4 of Explosive Substances Act 1908 and Section 25(1)(B)(a) of Arms Act, 1959 and Section 3 of TNP(PDL) Act 1992 as well as under section 120(B), 212 and 307 IPC and to another accused by name Santhosh @ Santhoshkumar, bail was granted on 6.8.2014, in the same case (Cr.No. 125/2014) by the learned Judicial Magistrate No. I, Chidambaram in Crl.M.P. No. 3716/2014. The learned counsel would add that admittedly, in the ground case, the detenu has not moved any bail application. 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 there is no 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 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 and [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 .

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 para 5 of the grounds of detention, the detenu is in remand in the ground case [Cr.No. 243/2014] and he has not filed any bail application in the said ground case as on the date of passing of the detention order. 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 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 also 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 Velumurugan @ Velu Vs. The Commissioner of Police and Another, (2005) 1 CTC 577 , 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, AIR 2012 SC 2002 : (2012) CriLJ 2935 : (2012) 5 SCALE 628 : (2012) 7 SCC 181 : (2012) AIRSCW 3043 : (2012) 4 Supreme 151 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."

(emphasis supplied)

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 passed by the second respondent is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.