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Judgment
Arunachalam, J.—Petitioner Seenivasan has been detained as a bootlegger under Tamil Nadu Act 14 of 1982 in pursuance of an order of detention dated 30.9.1993 passed by the first Respondent District Magistrate and Collector. Tiruvannamalai Sambuvarayar District, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
It will be totally unnecessary to state the facts in detail, which led to passing of the impugned order, for this Habeas Corpus Petition will have to be allowed on the solitary ground urged on behalf of the Petitioner.
Petitioner''s counsel pointed out paragraph 5 of the grounds of detention wherein the detaining authority has stated as follows:
I am aware that Thiru Seenivasan is in remand in sub-jail, Cheyyar, If he comes out as soon at the case is over or on bail, he will further indulge in same activities which will be prejudicial to the maintenance of public order.
The argument was that the detaining authority had not applied his mind to the likelihood or imminent possibility of the detenu getting released on bail or the case being over in his favour. He placed reliance on the decision of the Supreme Court in Rivadeneyta Ricardo Agustin v. Govt. of Delhi (1994 SCC (Cri) 354) .
Learned Additional Public Prosecutor, when confronted with this ground of challenge, placed for our scrutiny another decision of the Supreme Court in Noor Salman Makani Vs. Union of India and others, .
We have already extracted that portion of the grounds which needs scrutiny in this Habeas Corpus Petition. We have carefully looked into the law laid down by the Supreme Court in the decisions cited by either party. In Rivadeneyta Ricardo Agustin v. Govt. of Delhi (1994 SCC (Crl.) 354) , after extracting a portion of the grounds of detention, which reads as follows,
The Administrator of the National Capital Territory of Delhi is aware that you are in judicial custody and had not moved any bail applications in the Court(s) after June, 9, 1992 but nothing prevents you from moving bail applications and possibility of your release on bail cannot be ruled out in the near future. Keeping in view your modus operandi to smuggle gold into India and frequent visits to India, the Administrator of the National Capital Territory of Delhi is satisfied that unless prevented you will continue to engage yourself in prejudicial activities once you are released.
observed as hereunder:
The above statement merely speaks of a ''possibility'' of the detenu''s release in case he moves a bail petition. It neither says that such release was likely or that it was imminent. Evidently, the statement falls short of the requirement enunciated by this Court in Kamarunnissa and Others Vs. Union of India and another, Even in the return filed in this petition, the authority has not stated (in response to Ground ''B'' of the writ petition) that there was material before him upon which he was satisfied that the Petitioner was likely to be released or that such release was imminent.
It is apparent from his decision that the Detaining Authority must be satisfied about the imminent possibility of the likelihood of the release of the detenu on bail, on which foundation alone, a preventive order could be passed. Viewed in that light, we are unable to find in the impugned grounds such satisfaction having been arrived at by the Detaining Authority on the imminent possibility or likelihood of the detenu getting released on bail or even prosecution against him ending in his favour.
In Noor Salman Makani Vs. Union of India and others, , the Supreme Court stated as hereunder:
The next submission is regarding non-application of mind by the detaining authority with regard to the circumstance that the detenu was in jail and a mere bald statement that the possibility that the detenu was likely to be released on bail cannot be ruled out is not enough and it only shows that there was no proper application of mind. In this context, the learned Counsel relied on the judgment of this Court in Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others, . We see no force in this submission. We do not think that anything more could have been said by the Detaining Authority in this context. As a matter of fact the apprehension of the Detaining Authority came to be true as the detenu was released on bail no doubt subject to certain conditions on 25.9.92. Therefore there are no merits in this appeal.
It is clear from the observations of the Supreme Court that the Detaining Authority therein had stated that the detenu was likely to be released on bail and that possibility cannot be ruled out. That was held to be sufficient application of mind.
Even to that extent, the impugned grounds of detention do not proceed. We were also told mat the Petitioner was not released on bail. On the instant facts, in our opinion, law laid down by the Supreme Court in the case reported in Rivadevayta Ricardo Agustin v. Govt. of Delhi (1994 SCC (Crl) 354) will stand squarely attracted. On that basis, the detenu is bound to succeed.
Impugned order of detention is set aside. The detenu shall be set at liberty forthwith unless his detention is otherwise required. This Habeas Corpus Petition is allowed.