R. Jeyasudha vs State of Tamil Nadu and Others

P.R. Shivakumar, J.—The petitioner is the wife of the detenu. The detenu has been detained by the second respondent by his order in C.O.C. No. 69/2015, dated 27.10.2015, holding him to be a "BootLegger", as contemplated under Section 2(b) of Tamil Nadu Act 14 of 1982, taking note of the ground case in Crime No. 389 of 2015 registered on the file of Perambur Police Station for an offence punishable under Section 4(1)(aaa) read with 4(1-A) of the Tamil Nadu Prohibition Act, 1937 (Transport) and the following two adverse cases:

"(i) Crime No. 418 of 2015 registered on the file of Nagapattinam Prohibition Enforcement Wing for offences punishable under Section 4(1)(aaa), 4(1)(i) read with 4(1-A) of the Tamil Nadu Prohibition Act, 1937; and

(ii) Crime No. 752 of 2015 registered on the file of Mayiladuthurai Prohibition Enforcement Wing for an offence punishable under Section 4(1)(aaa) of the Tamil Nadu Prohibition Act, 1937 (Transport)."

The Detaining Authority, expressing subjective satisfaction that the detenu conformed to the definition of "Boot-Legger" and that his presence at large would be prejudicial to the maintenance of public order and public health and also expressing subjective satisfaction that it was very likely that the detenu would come out on bail in the ground case, passed the impugned detention order. The said order is challenged in the present Habeas Corpus Petition.

The order of detention has been assailed on several grounds listed in the affidavit filed in support of the Habeas Corpus Petition. However, the learned counsel for the petitioner giving up other grounds, confines the challenge on the following ground alone:

"Non-application of mind and mechanical clamping of the order of detention is writ large in so far as the detaining authority referred to the first adverse case in which he was granted bail as the second adverse case and in addition failed to consider and express subjective satisfaction of the Detaining Authority as to the real/imminent possibility of the detenu coming out on bail in the second adverse case."

The submissions made by the learned Additional Public Prosecutor in reply to the above said contentions raised by the learned counsel for the petitioner are also heard.

In paragraph No. 5 of the grounds of detention, the detaining authority has made the following observation:

"I am aware that Thiru. Ramesh, Male, aged 30/2015, S/o. Kasinathan was produced before the learned Judicial Magistrate Court No. II, Mayiladuthurai on 04.10.2015 and remanded in Sub-Jail, Poraiyar as a remand prisoner on the same day itself. His remand period was upto on 16.10.2015 and further his remand period was extended upto 30.10.2015. I am aware that Thiru. Ramesh, Male, aged 30/2015, S/o. Kasinathan is in remand in connection with the case in Perambur Police Station Cr. No. 389/2015. I am aware that he had moved a bail petition before the learned Judicial Magistrate Court No. II, Mayiladuthurai on 05.10.2015. Further bail petition filed before the Sessions Judge, Nagapattinam was dismissed in Cr.M.P. No. 2719/2015, dated 16.10.2015. It is learnt from the records produced by the Inspector of Police, Perambur Police Station that Tmt. Jayasutha wife of Thiru. Ramesh, is tried to file bail petition before the Hon''ble High Court, Chennai. Further, in his own second adverse case in Nagapattinam P.E.W. Cr. No. 418/2015, u/s. 4(1)(aaa), 4(1)(i) r/w 4 TNP Act, 1937 Thiru. Ramesh, Male, aged 30/2015, S/o. Kasinathan was arrested and remanded on 29.05.2015 and later released on bail by the District Sessions Court, Nagapattinam in Cr.M.P. No. 1327/2015 dated 15.06.2015. Hence, I am satisfied that there is a real and imminent possibility of his (Thiru. Ramesh, Male, aged 30/2015, S/o. Kasinathan) coming out on bail by filing a bail application for the above case before the Higher Court. If he comes out on bail, he will indulge in such further activities, which will be prejudicial to the maintenance of public order and public health."

As per the table, Crime No. 418 of 2015 registered on the file of Nagapattinam Prohibition Enforcement Wing is shown as the first adverse case and in that case, the detenu was granted bail by the Sessions Court, Nagapattinam by order dated 15.06.2015 in Crl.M.P. No. 1327 of 2015. The second adverse case as per the table is Crime No. 752 of 2015 registered on the file of Mayiladuthurai Prohibition Enforcement Wing. It has also been stated therein that he was remanded in the said case and the remand was extended upto 30.10.2015. While referring to the remand and remand extension or the grant of bail in the ground case and adverse cases, the detaining authority referred to Crime No. 418 of 2015 registered on the file of Nagapattinam Prohibition Enforcement Wing for offences under Section 4(1)(aaa), 4(1)(i) read with 4(1-A) of the Tamil Nadu Prohibition Act, 1937 as the second adverse case in which he was directed to be released on bail by the order of the Sessions Court, Nagapattinam dated 15.06.2015 made in Crl.M.P. No. 1327 of 2015. But, the said case, as rightly contended by the learned counsel for the petitioner, is not the second adverse case, but it is only the first adverse case. So far as the second adverse case viz., Crime No. 752 of 2015 registered on the file of Mayiladuthurai Prohibition Enforcement Wing for an offence punishable under Section 4(1)(aaa) of the Tamil Nadu Prohibition Act, 1937 (Transport) is concerned, the detaining authority took note of the fact that he was arrested on 16.10.2015 and remanded upto 30.10.2015. The detention order came to be passed on 27.10.2015. The detaining authority did not refer to either the release of the detenu in the said case, namely, the second adverse case or his imminent possibility of coming out on bail in the second adverse case. The detaining authority expressed subjective satisfaction of the imminent possibility of the detenu coming out on bail only in the ground case namely, Crime No. 389 of 2015 registered on the file of Perambur Police Station for an offence punishable under Section 4(1)(aaa) read with 4(1-A) of the Tamil Nadu Prohibition Act, 1937 (Transport). Hence, as rightly contended by the learned counsel for the petitioner, non-application of mind on the part of the detaining authority is writ large, not only in the wrong citation of the first adverse case as the second adverse case, but also by the non-consideration of the imminent possibility of the detenu coming out on bail in the second adverse case. On that score alone, the order of detention is liable to be set aside.

In the result, the Habeas Corpus Petition is allowed and this Court sets aside the Order of Detention dated 27.10.2015, made in C.O.C. No. 69/2015, by the second respondent, the District Collector and District Magistrate, Office of the District and District Magistrate, Nagapattinaqm District, Nagapattinam and directs the release of the detenu, by name Ramesh, Son of Kasinathan, aged about 30 years forthwith, if his continued custody is not authorised in specific cases or by any other detention order.