Vazhivittan vs The State of Tamil Nadu

P. Sathasivam, J.

Petitioner Vazhivittan, 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 Prates Act, 1982 (Tamil Nadu 14 of 1982) by the impugned

proceedings dated 29-01-2005, challenges the same on various grounds.

Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor for respondents.

Among the grounds raised, learned counsel for the petitioner, at the foremost, projected that the detenu is in custody and has not filed any bail

application. In such a circumstance, the imminent real possibility of coming out on bail could not be ascertained; and in the absence of imminent/real

possibility of being enlarged on bail, the detaining authority is not justified in clamping the detention order on the ground that if he comes out, he is

likely to indulge in prejudicial activities in future. In other words, according to the counsel, there is no compelling necessity for the detaining

authority for passing the order of detention. Learned Additional Public Prosecutor met this contention by stating that considering all the relevant

materials, and taking note of the relevant facts, the detaining authority, after satisfying himself that the detenu if comes out on bail, will indulge in

prejudicial activities in future, and to prevent him to do so, rightly detained him as ''Goonda''.

In order to appreciate the above contention, it would be useful to refer the very language used by the detaining authority in para 5 of the grounds

of detention, which is as follows:

I am aware that Tr. Vazhivittan, S/o. Ramasamy Thevar has been remanded to judicial custody by the Judicial Magistrate No. VI, Madurai on

27-12-2004. He is a remand Prisoner lodged in the Central Prison, Madurai. I am aware that he has not filed any bail application so far. However,

there is a possibility of his filing bail application and being enlarged on bail by the criminal Court or the superior courts...

Before considering the fact whether the detaining authority is justified in passing the order of detention, it is useful to refer the conclusion arrived

at by the Full Bench of this Court in H.C.P.Nos. 171, 188, 198 and 220 of 2005 dated 09-9-2005 (A. Thirupathi Vs. District Magistrate And

District Collector, Tiruchirapalli District (- reported in 2005-2-L.W.(Crl) 946 (F.B.)) with reference to justification of passing order of detention:

(para 26 and 27)

There must be cogent the detention order for inferring that the detenu was likely to be released on bail. This reference must be drawn from

material on record and must not be the ipse dixit of the Authority passing the detention order.

In the case of a person in custody a detention order can validly be passed if the authority passing the order is aware of the fact that he is

actually in custody; if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being

released on bail, and (b) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording its

satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if

bail is granted notwithstanding such opposition to question it before a higher court.

In the light of the above referred Full Bench decision of this Court, let us consider whether the detaining authority is justified in passing the order

of detention in the instant case. There is no dispute that the detaining authority had taken note of the relevant fact that the detenu has been

remanded to judicial custody by an order of Magistrate. He also noted and verified that the detenu has not filed any bail application so far. In such

a circumstance, namely, in the absence of any bail application, unless the detaining authority satisfies himself that there is a real possibility of being

enlarged on bail based on the pendency of the bail application or by filing bail application, it cannot be claimed that there is a subjective satisfaction

for detaining the detenu under Tamil Nadu Act 14 of 1982. As observed by the Full Bench in para 26 of the above order, the detaining authority

must have an inference from the materials on record that there is a real possibility of his being released on bail, and it is essential to detain him to

prevent him from indulging in prejudicial activities in future. In the absence of pendency of bail application or likelihood of it being filed, or the

subjective satisfaction arrived by the detaining authority was drawn from reliable materials, we are of the view that there is no real possibility of the

detenu being released on bail. This vital/material aspect has not been gone into by the detaining authority. Further, the mere statement that the

possibility of the detenu''s release in case he moves a bail petition would not satisfy the mandatory requirement. If there are cogent materials for

them that the detenu might be released, then these should have been made apparent in the grounds of detention. As said earlier, the said inference

must be drawn from the materials on record and must not be the ipse dixit of the Authority passing the detention order. The satisfaction must be

reflected in the grounds of detention. On perusal of the materials and the statement made in para 5, we are satisfied that in the absence of specific

expression in the grounds of detention, we are constrained to conclude that the detaining authority, in the instant case, has never reflected his

application of mind and consequently, the impugned order of detention is liable to be quashed.

Under these circumstances, the impugned order of detention is quashed. Habeas Corpus Petition is allowed. The detenu is set at liberty forth-

with, unless he is required in connection with any other case.