Vaikundam vs The State of Tamil Nadu and Others

P.R. Shivakumar, J.—The petitioner is the detenu. The detenu was detained by the second respondent by his Detention Order in M.H.S. Confdl.No.61/2015 dated 30.05.2015, holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982, taking note of the ground case in Crime No. 133 of 2015 on the file of Tirunelveli Taluk Police Station registered for the alleged offence punishable under Section 397 of the Indian Penal Code, altered to 341 , 397 , 506(ii) of the Indian Penal Code and the following three adverse cases:-

(i) Crime No. 271 of 2014 registered on the file of Tirunelveli Taluk Police Station for alleged offences punishable under Sections 294(b) , 307 , 506(ii) of the Indian Penal Code altered to 294(b) , 114 , 307 and 506(ii) of the Indian Penal Code;

(ii) Crime No. 130 of 2015 registered on the file of Tirunelveli Taluk Police Station for alleged offences punishable under Sections 294(b) , 307 and 506(ii) of the Indian Penal Code;

(iii) Crime No. 62 of 2015 registered on the file of Seevalaperi Police Station for alleged offences punishable under Sections 294(b) , 387 and 506(ii) of the Indian Penal Code;

The Detaining Authority, expressing subjective satisfaction that the detenu conformed to the definition of the Goonda and that his presence at large would be prejudicial to the maintenance of public order 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.

Though the detention order is sought to be assailed on several grounds, the learned counsel for the petitioner mainly relies on the following contention:

The detaining authority referred to a bail order in a different case when no bail application was pending as on the date of the order of detention in the ground case and the third adverse case. The said comparison to express subjective satisfaction is against the dictum of the Hon''ble Supreme Court consisting of three Hon''ble Judges in Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, and also the judgment of a Division Bench of the Madras High Court in H.C.P(MD).No.1154 of 2015, dated 11.08.2015 [Chandrakala Vs. The Secretary to Government].

We heard the submissions made by the learned Additional Public Prosecutor on the above said submissions made on behalf of the petitioner, and the submissions made by the learned Additional Public Prosecutor are also taken into consideration.

Regarding the subjective satisfaction of the detaining authority as to the real possibility of the detenu coming out on bail in the ground case and the third adverse case, the detaining authority made the following observation:

"I am also aware that in a similar case bail has been granted to Periyadurai in CRMP No. 4377/2012 dated 02.01.2013 by the Judicial Magistrate No.III, Tirunelveli. I therefore infer that there is real possibility of his (Thiru.Vaikundam) coming out on bail in Seevalaperi Police Station Crime Number 62/2015; since bails are granted by the appropriate courts in such cases. I am aware that Thiru.Vaikundam is in remand in Tirunelveli Taluk Police Station Crime Number 133/2015 and in this case he filed a bail petition before the Vocation Sessions Court, Tirunelveli in CRMP No. 3266/2015 on 22.05.2015 and the bail petition was dismissed on 27.05.2015. I am also aware that there is real possibility of his coming out on bail in future by filing bail application for the above cases since in similar cases bails are granted by the appropriate courts. I am also aware that in a similar case bail has been granted to Savarimuthu in CRMP No. 3099/2014 dated 07.07.2014 by the Principal Sessions Court, Tirunelveli. I therefore infer that there is real possibility of his (Thiru.Vaikundam) coming out on bail in Tirunelveli Taluk Police Station Crime Number 133/2015; since bails are granted by the appropriate courts in such cases."

It is an admitted fact that bail application filed by the detenu in the ground case was dismissed before the passing of the order of detention and the same was also taken note of by the detaining authority. No further bail application came to be filed by or on behalf of the detenu in the ground case. It is also an admitted fact that in the third adverse case, no bail application was filed for the release of the detenu on bail in the said case. When no bail application is pending, the detaining authority could refer to a bail granted to a co-accused in the same case to express the subjective satisfaction of the real possibility of the detenu coming out on bail. Only in case a bail application is pending, the detaining authority can refer to a similar case in which bail was granted to the accused therein, in support of his subjective satisfaction regarding the real possibility of the detenu coming out on bail. It has been held so by a Division Bench of the Madras High Court in H.C.P(MD).No.1154 of 2015, dated 11.08.2015 [Chandrakala Vs. The Secretary to Government], following the judgment of the Hon''ble Supreme Court consisting of three Hon''ble Judges in Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, , which position was clarified by a Division Bench of the Hon''ble Supreme Court consisting of two Hon''ble Judges in Huidrom Konungjao Singh Vs. State of Manipur and Others, .

Hence, we come to the conclusion that the subjective satisfaction expressed by the detaining authority regarding the real possibility of the detenu coming out on bail in the ground case and the third adverse case to justify the clamping of the order of detention, while the detenu was in custody as a remand prisoner, can be termed "ipse dixit" not supported by cogent materials. On that ground 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 30.05.2015, made in M.H.S. Confdl.No.61/2015, by the second respondent, the District Collector and District Magistrate, Tirunelveli District, Tirunelveli, and directs the release of the detenu by name Vaikkundam, S/o. Ramasubbu Nadar, aged about 40 years forthwith, if his continued custody is not authorised in specific cases or by any other detention order.