Sathish vs State of Tamil Nadu

P. Sathasivam, J.—The detenu, namely, Sathish, who was detained as Goonda under Tamil Nadu Prevention of Dangerous Activities of

Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu

Act 14 of 1982) by the impugned proceedings dated 15-02-2005, challenges the same in this petition.

Learned counsel appearing for the petitioner among other contentions, at the foremost, projected that inasmuch as the detenu''s two earlier bail

applications were dismissed one by the Judicial Magistrate and another by the Sessions Court, in the absence of any reference with regard to this

in the grounds of detention, the detention order is liable to be set aside on the ground of non application of mind on the part of the detaining

authority. In this regard, it is relevant to refer the actual statement of fact referred to by the detaining authority in para 4 of the grounds of detention

which reads as under:

I am aware that Thiru Sathish is in remand in G3 Kilpauk Police Station Crime No. 108/2005 and he has not moved any bail application so far.

I am also aware that there is imminent possibility of his coming out on bail by filing a bail application, since in similar cases bails are granted by the

Sessions Court or Higher 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.

The above statement makes it clear that the detaining authority was aware of the fact that the detenu is in remand. However, he has made a

categorical statement that ""he (detenu) has not moved any bail application so far"". On the other hand, it is the claim of the petitioner that in the

ground case in Crime No. 108/2005 the accused has filed a bail application in M.P. No. 308/2005 before the learned XIV Metropolitan

Magistrate, Egmore, Chennai and the same has been dismissed by the learned Magistrate on 9-2-2005. It is also seen that subsequently he has

filed a bail application in Crl.M.P. No. 1474/2005 before the Principal Sessions Court, Chennai on 11-02-2005 i.e., before passing of the

detention order on 15-2-2005. These details find place in Para 3 (f) of the affidavit filed in support of the above petition. But in the grounds of

detention, contrary to the above facts, the detaining authority has stated that the detenu has not moved any bail application so far. According to the

counsel, this is an incident of non-application of mind on the part of the detaining authority and on this ground, the detention order is liable to be

quashed.

Apart from the specific averment in Ground 3 (f) of the affidavit, learned counsel has also produced a copy of the bail petition in M.P. No.

308/2005 on the file of XIV Metropolitan Magistrate, Egmore, Chennai and Crl.M.P. No. 1474/2005 filed before the Principal Sessions Court,

Chennai. Even though in the bail application filed before the learned Metropolitan Magistrate, there is no specific averment to get the attention of

the Magistrate for consideration, however, in the bail petition before the Principal Sessions Court, Chennai it is specifically stated that he has been

falsely implicated. It is further stated that a stranger gave a complaint clearly stating the names of the accused and the alleged independent acts by

each accused. It is also stated that a stranger will not know the names of passers-by. The petitioner also stated therein that he has no bad

antecedents and he is the sole bread-winner of his family and will not tamper witnesses or hamper the investigation. As rightly pointed out by the

learned counsel for the petitioner, even though the first bail petition was dismissed by the learned Magistrate on 9-2-2005 another bail application

was filed before the Prl. Sessions Court, Chennai on 11-2-2005 i.e., well before passing of the detention order on 15-2-2005. In such a

circumstance, the sponsoring authority ought to have forwarded those materials to the detaining authority, who in turn, ought to have referred the

same in the grounds of detention. In such a circumstance, it is useful to refer a judgment of this Court in Esaac v. The Secretary to Government

Prohibition and Excise Department, Chennai-9 and Ors., reported in 1999 (2) MWN 248 wherein the Bench has held that ""non placement of

materials deliberately before the detaining authority while passing the order of detention will definitely vitiate the detention order which will be

sufficient to hold in favour of the detenu. In another judgment in P.M. Subramanian v. State of Tamil Nadu, represented by its Secretary, reported

in 1999 (2) MWN (Cri). 244 this Court, after finding that the sponsoring authority was aware of the bail and yet, failed to put the same, has

concluded:

The non-consideration of pending bail application wherein the detenu had retracted the facts of the ground case would be a major fact against the

legality of the detention order. It will then have to be held that the sponsoring authority has failed to place the relevant materials before the detaining

authority which would have one way or the other affected the discretion of the detaining authority to order detention. In that view of the matter, the

petition has to succeed...

Both the above said decisions are applicable to the case on hand.

Learned Government Advocate by drawing our attention to proposition No. 3 in para 12 in the case of Abdul Sathar Ibrahim Manik v. Union

of India 1992 S.C.C. (Cri) 1 would contend that even in the absence of placing bail application before the detaining authority, it does not amount

to suppression of relevant material. Principle No. 3 in para 12 of the said judgement is as follows: (para 12)

12 (3) If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it

does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long

as the detaining authority was aware of the fact that the detenu was in actual custody.

No doubt, as pointed out by the learned Government Advocate, the detaining authority was aware of the fact that the detenu was in remand on the

date of passing of the detention order. Further, as per the above principle, the nonplacing of the bail application does not amount to suppression of

relevant material. Absolutely, there is no quarrel with regard to the above proposition of law as pointed out by the learned Government Advocate.

However, it is to be noted that in para 4, while the detaining authority satisfies himself with regard to imminent possibility and urgency, he has

wrongly stated that ""the detenu has not moved any bail application so far"". We have already referred to the admitted factual position that the

petitioner had moved first bail application before the learned Magistrate which was dismissed on 9-2-2005; and another bail application before the

Principal Sessions Court at Chennai on 11-2-2005. It is also the claim of the petitioner that a copy of the said bail petition was served on the

learned Public Prosecutor even on 11-2-2005 and that the said application was also dismissed by the Sessions Court on 14-2-2005. Though it is

brought to our notice that the sponsoring authority sent his proposal on 14-2-2005 to the detaining authority, it is not his case that he was not

aware of the dismissal of the bail petition by the learned Magistrate and filing of the bail application before the Sessions Court on 11-2-2005. We

have already referred to the contents and grievance of the petitioner referred to in the bail application filed before the sessions Court on 11-2-

2005. The detaining authority ought to have noticed the details furnished/grievance expressed therein, as the same was reported to have been

served on the Public Prosecutor even on 11-2-2005. Therefore, in our opinion, this is a vital fact, and the detaining authority ought to have taken

notice of this vital fact. As observed by the Honourable Supreme Court in K. Varadharaj Vs. State of Tamil Nadu and Another, ., since bail

petition before the Sessions Court contains vital information, nonconsideration of the said fact in our opinion vitiates the order of detention. On this

peculiar factual position, in spite of principle No. 3 in para 12 of the Abdul Sathar case (cited supra), we have no other option except to quash the

impugned order of detention on the ground of nonconsideration of material aspect and non-application of mind on the part of the detaining

authority.

Under these circumstances, the impugned order of detention is set aside. The Habeas Corpus Petition is allowed. The detenu-Sathish is directed

to be released and set at liberty forthwith unless his detention is required for some other cause.