Madras High Court
J. Palani vs The Commissioner Of Police And The ... on 4 July, 2007
Author: R. Banumathi
Bench: P.K. Misra, R. Banumathi
ORDER R. Banumathi, J.
Page 1685
1. The Petitioner challenges the detention order dated 20.12.2006, clamped on him by the Second Respondent branding him as "Goonda" as contemplated Under Section 2(f) of T.N. Act 14/1982.
2. The Petitioner had earlier come to adverse notice in three cases, viz., V1 Villivakkam P.S. Cr. No. 481/06 Under Section 341, 323, 324 & 506(ii) Page 1686 IPC, V6 Kolathur P.S. Cr. No. 474/06 Under Section 454 & 380 IPC and V6 Kolathur P.S. Cr. No. 486/06 Under Section 341, 384 & 506(ii) IPC. The immediate cause for the detention order was the occurrence on 01.12.06, wherein, the Petitioner is alleged to have attempted on the life of the Police, who went to apprehend the Petitioner in connection with Cr. No. 486/06. The ground case was registered in V6 Kolathur P.S.Cr. No. 488/06 Under Section 353, 336, 427, 307 and 506(ii) IPC.
3. Even though, several contentions were raised and argued as well, we do not deem it necessary to go into each and every one of them, since, in our view, the submission that there was no immediate chance of the Petitioner being released on bail and yet the Detaining Authority had passed the detention order merits acceptance. The learned Counsel for the Petitioner has contended that the grounds of detention reflect awareness of Detaining Authority in Cr.Nos. 474/06, 486/06 and 488/06, whereas, bail was moved only in Cr.Nos. 474/06 and 486/06 and while so, there was no real possibility of the Petitioner being released on bail and therefore, the detention order is vitiated.
4. It may be useful to notice the relevant part of the detention order, which deals with this aspect of the matter.
4. I am aware that Thiru Palani is in remand in V6 Kolathur Police Station Crime Nos. 474/2006, 486/2006 and 488/2006 and has moved bail applications for the cases in V6 Kolathur P.S.Cr.Nos. 474/2006 and 486/2006 before the V Metropolitan Magistrate, Egmore, Chennai in Crl.M.P.Nos. 2105/2006 and 2104/2006 respectively and the same are pending. I am also aware that it is very likely of his coming out on bail for the above cases since in similar cases bails are granted by the same Court or higher Courts.
5. It is well settled that while clamping detention order on a person, who is already in custody, the Detaining Authority must show its awareness to the fact of subsisting custody of the detenu and taking that factor into account, but, even then, if the Detaining Authority is reasonably satisfied on account of cogent material that there is likelihood of the detetu's release. Dealing with a case under PIT NDPS Act in 1990 Cr.L.J. 1232 (SC) (Dharmendra v. Union of India), the Supreme Court has laid down guidelines as below:
An order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that --
i. the Detaining Authority was aware of the fact that the detenu is already in detention; and ii. there was "compelling reasons" justifying such detention despite the fact that the detenu is already in detention.
Page 1687 The expression "compelling reasons" in the context of making an order for detention of a person already in custody implied that there must be cogent material before the Detaining Authority on the basis of which it may be satisfied that:
(a) the detenu is likely to be released from custody in the near future; and
(b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in rder to prevent him from engaging in such activities.
6. The principle was further elucidated in catena of decisions (1991) 1 S.C.C. 228 (Kamarunnissa v. Union of India); (Rajesh Gulati v. Government of NCT of Delhi); (K. Varadharaj v. State of Tamil Nadu); (2001) 2 S.C.C. 341 (Amritlal v. Union Government); 2994 S.C.C. (Cri) 354 (Rivadeneyta Ricardo Agustin v. Government of the NCT of Delhi) and (Abdul Sathar Ibrahim Manik v. Union of India).
7. In the recent cases (T.V. Saravanan v. State) and (2006) 9 S.C.C. 711 (A. Shanthi v. Government of T.N.), the Supreme Court has held that the imminent possibility of the detenu coming out on bail cannot be merely the lpse dixit of the Detaining Authority, but has to be supported by cogent material, on the basis of which, the Detaining Authority, could be satisfied that the detenu was likely to be released on bail. It was further held that the inference has to be drawn from the available material on record. In the absence of such material on record the mere lpse dixit of the Detaining Authority is not sufficient to sustain the order of detention.
8. Bearing the above principles in mind, when we advert to the present case, in the grounds of detention, we notice that the Petitioner was remanded in three cases in Cr.Nos. 474/06, 486/06 and 488/06 and he has moved bail applications only in adverse case Cr.Nos. 474/06 and 486/06. The grounds of detention does not reflect the awareness of the Detaining Authority as to filing of bail application in the ground case Cr. No. 488/06. which is a serious offence viz., interalia Under Section 307 IPC. Having regard to the seriousness of offence and the criminal antecedents of the Petitioner, grant of bail in ground case Cr. No. 488/06, is not automatic. The only consideration of the Detaining Authority seems to be likelihood of Petitioner being released on bail in adverse case Cr.Nos. 474/06 and 486/06 and not in respect of ground case Cr. No. 488/06.
Page 1688
9. In our opinion, the ratio of the Division Bench decision reported in 1992 (1) Crimes 1160 (Kannan @ Kannappan v. State of Tamil Nadu and Anr.) and the order in H.C.P. No. 466 of 2004 dated 16.9.04 (in which, one of us was a Member-Justice P.K. Misra), would be applicable. In those decisions, the non-consideration by the Detaining Authority of the possibility of the detenu being released on bail in respect of another Incident, for which, there was a separate order of remand, was considered to have vitiated the satisfaction of the Detaining Authority. In this case, the non-consideration by the Detaining Authority of the possibility of the detenu being released on bail in the ground case has the effect of vitiating the conclusions of the Detaining Authority.
10. For the aforesaid reasons, the Habeas Corpus Petition is allowed and the order of detention dated 20.12.2006 is quashed and the Petitioner/detenu is directed to be set at liberty forthwith from the custody unless he is required in connection with any other case.