Madras High Court
Guruvayee Sudha vs The State Of Tamil Nadu on 6 August, 2014
Author: S.Rajeswaran
Bench: S.Rajeswaran, P.N.Prakash
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.08.2014
CORAM
THE HONOURABLE MR.JUSTICE S.RAJESWARAN
and
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
H.C.P.No.214 of 2014
Guruvayee Sudha .. Petitioner
Vs.
1.The State of Tamil Nadu,
Rep. By its Secretary to Government,
Home, Prohibition and Excise Department,
Fort St. George,
Chennai 9.
2.The District Collector and
District Magistrate,
Erode District,
Erode 638 011. .. Respondents
Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to produce the body of the detenue by name Ramesh @ Sidheswaran, son of Ramasamy presently confined at Central Prison, Coimbatore before this Court and set him at liberty forthwith, after calling for the records pertaining to the detention order dated 30.12.2013 made in Cr.M.P.No.37/2013/C1 on the file of the second respondent, quash the same.
For Petitioner : Mr.N.Manokaran
For RR1&2 : Mr.P.Govindarajan,APP
ORDER
[Order of the Court was made by S.RAJESWARAN, J.] Challenge is made to the order of detention passed by the second respondent vide Proceedings in Cr.M.P.No.37/2013/C1 dated 30.12.2013, whereby the husband of the petitioner by name Ramesh alias Sidheswaran, aged 38 years, son of Ramasamy, was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "GOONDA".
2. As per the grounds of detention dated 30.12.2013, passed by the second respondent, the detenu came to adverse notice in the following cases:
i)Adverse case:
Sl No. Name of the Police station and Crime No. Section of law 1 Erode District Vellithiruppur Police Station, Crime No.134/2010 dated 12.08.2010 147, 148, 341, 323, 324, 506(ii) I.P.C., & 4 of TNWH Act
(ii) Ground Case:
Sl No. Name of the Police station and Crime No. Section of law 1 Vellithiruppur Police Station, Crime No.206/2013 147, 148, 341, 302, 506(ii) I.P.C.
3.Though many grounds have been raised in the petition, Mr.N.Manokaran, the learned counsel appearing for the petitioner, confines his argument only in respect of non-application of mind on the part of the detaining authority in passing the order of detention.
4. According to the learned counsel appearing for the petitioner, the detenu has been in remand in the ground case in Cr.No.206/2013 and in the adverse case in Cr.No.134/2010, registered by the Erode District Vellithiruppur Police Station and the bail application filed by the detenu in the ground case before the learned Principal District Judge, Erode in Crl.MP.No.1626/2013 was dismissed on 20.11.2013. He would contend that the Detaining authority has not stated whether the detenu has filed any bail application in respect of the adverse cases in which he is in remand. The learned counsel would add that admittedly, in this case, the detenu has not moved any bail application in the adverse case and the bail application filed in the ground case was dismissed and the detenu has not filed any further bail application in the ground case subsequent to its dismissal by the Court concerned and he is in remand in the said cases. When no further bail application is filed, there is no real possibility of the detenu coming out on bail and when a bail application was dismissed, then there is no presumption that the detenu would come out on bail. No cogent materials are available before the Detaining Authority to conclude / to apprehend that the detenu is likely to get bail in the ground case as well as in the adverse case and there is imminent possibility of the detenu coming out on bail in the said cases. He adds that in para 5 of the grounds of detention the detaining authority has stated that the detenue moved bail applications in the above case before the Principal District Judge, Erode and the same were dismissed in Criminal Miscellaneous Petitoin Numbers 1626/2013 and 1759/2013 on 20.11.2013 and 20.12.2013 respectively. According to the learned counsel, Crl.M.P.No.1626/2013 dated 20.11.2013 alone pertaining to the bail petition filed by the detenue in the ground case in Crime No.206/2013 but the detaining authority also refers Crl.MP.No.1759/2013 dated 20.12.2013 does not relate to the ground case crime number and it refers to some other case. Hence, it is stated that the Detaining Authority has passed the impugned detention order in total non-application of mind and the subjective satisfaction arrived at by the Detaining Authority that there is real possibility of the detenu coming out on bail in the adverse case and that there is a likelihood of his coming out on bail in the ground case is a mere ipse dixit without any cogent materials. In support of his contention, he relies on the judgments of the Hon'ble Apex Court reported in [a] 2006 [1] MLJ [Crl.] 539, [T.V.SARAVANAN @ S.A.R.PRASANNA VENKATACHARIAR CHATURVEDI V. STATE OF TAMILNADU THROUGH SECRETARY AND ANOTHER] ; [b]2005 [1] CTC 577 [VELMURUGAN @ VELU Vs. THE COMMISSIONER OF POLICE] ; [c] 2012 [7] SCC 181 [HUIDROM KONUNGJAO SINGH VS. STATE OF MANIPUR] and [d] 2008 [3] MLJ (Crl.) 144 [S.ANDAL VS. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, MADURAI DISTRICT, MADURAI AND ANOTHER].
5.Per contra, the learned Additional Public Prosecutor would submit that the order of detention has been passed on cogent and sufficient materials and the same cannot be interfered with at the instance of the petitioner. Therefore, he submits that the Habeas Corpus Petition does not merit any consideration and the same is liable to be dismissed.
6.We have heard the learned counsel for both sides with regard to the facts and citation.
7.Before adverting to the arguments of the counsel for both sides, we would like to reproduce the relevant portion of the grounds of the detention order, viz., paragraph 5, on which much reliance has been placed by the learned counsel appearing for the petitioner:
" I am aware that Thiru Ramesh alias Sidheswaran is remanded in Vellithiruppur Police Station Crime Number 206/2013 under section 147, 148, 341, 302, 506(ii) I.P.C., and he was lodged at District Prison, Gobichettipalayam. I am also aware that he moved bail applications in the above case before the Principal District Judge, Erode and the same were dismissed in Criminal Miscellaneous Petition Numbers 1626/2013 and 1759/2013 on 20.11.2013, and 2012.2013 respectively. It is real possibility of Thiru Ramesh alias Sidheswran coming out on bail in the above case by filing another bail application before the appropriate court in future. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of public order..............."
8.As could be seen from the above ground in the order of detention, the detenu is in remand in the ground case [Cr.No.206/2013] and in the adverse case [Cr.No.134/2010] and the bail application filed by the detenu in the ground case in Crl.MP.No.1626/2013 before the learned Principal District Judge, Erode, was dismissed on 20.11.2013. Thereafter, no bail application has been filed. It is only stated that the detenu would come out on bail by filing another bail application. When no bail application is filed, there is no imminent possibility of the detenu coming out on bail. Excepting a mere statement, no other material has been referred to by the detaining authority to come to such a conclusion. Therefore, the subjective satisfaction arrived at by the detaining authority that there is real possibility of his coming out on bail in the said adverse case and that there is likelihood of his coming out on bail in the ground case would be a mere ipse dixit and that would vitiate the order of detention and the same is indicative of total non-application of mind on the part of the Detaining Authority. Therefore on this ground the impugned order is liable to be set aside. Further, as evidenced from the above ground of the Detention Order, the bail application filed in respect of the said ground case as stated by the Detaining Authority in Crl.MP.No.1759/2013, does not relate to the ground case, as evidenced from the Booklet furnished to the detenu and the said bail petition number, i.e., Crl.MP.No.1759/2013 relates to some other case. Hence, the order of detention has been passed by the Detaining Authority in total non-application of mind and the same cannot be sustained in the eye of law and the same is liable to be set aside.
9.In this connection it is useful to refer the judgment of the Hon'ble Apex Court relied on by the learned counsel for the petitioner.
[a]In 2006 [1] MLJ [Crl.] 539, [T.V.SARAVANAN @ S.A.R.PRASANNA VENKATACHARIAR CHATURVEDI V. STATE OF TAMILNADU THROUGH SECRETARY AND ANOTHER] , wherein the Hon'ble Apex Court has held as follows:
"The Courts had rejected the bail applications moved by the appellant and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The "imminent possibility" of the appellant coming out on bail is mere ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. The inference has to be drawn from the available material on record, in the absence of such material on record, the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention."
[b]In 2005 (1) CTC 577 (Velmurugan @ Velu vs. The Commissioner of Police), it has been held as follows:
"3.......unless there is a clear expression by the detaining authority in the grounds of detention with reference to the imminent possibility of the detenu being released on bail by filing bail application, the detaining authority would not choose to pass the detention order. In order to prevent the detenu from committing the acts, which would be disturbance to public order and public health, the detaining authority shall consider the materials and on the basis of subjective satisfaction that there is imminent possibility of the detenu coming out on bail or likelihood of the detenu being released on bail, the detaining authority may pass such an order under Tamil Nadu Act 14 of 1982. When such an essential requirement, namely, the imminent possibility of the detenu coming out on bail, is absent, it has to be held that the order of detention is vitiated."
[c]In 2012 [7] SCC 181 [cited supra] which reads thus:-
12. In Rekha v. State of Tamil Nadu through Secretary to Govt. & Anr., (2011) 5 SCC 244, this Court while dealing with the issue held :
........ A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground.
14......... Thus, as the detenu in the instant case has not moved the bail application and no other co- accused, if any, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eyes of law."
(emphasis supplied) [d]In 2008 [3] MLJ (Crl.) 144 [S.ANDAL VS. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, MADURAI DISTRICT, MADURAI AND ANOTHER], it has been held as follows:
"Where a bail application filed by the detenu was pending before the Court and the Detaining Authority coming to the conclusion that there was a real possibility of the detenu coming out on bail, even prior to the passing of an order on bail application, held the detention order was passed without proper application of mind, rendering it vitiated."
10.It is a trite law that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of Constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Preventive detention is preventive and not punitive. When ordinary law of the land is sufficient to deal with, taking recourse to the preventive detention law is illegal.
11.In the light of the above facts and law, we have no hesitation in quashing the order of detention on the above mentioned grounds.
12. Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order in Cr.M.P.No.37/2013/C1 dated 30.12.2013 passed by the second respondent is set aside. The detenu, viz., Ramesh alias Sidheswaran, aged 38 years son of Ramasamy, is directed to be released forthwith unless his presence is required in connection with any other case.
(S.R.,J.) (P.N.P.,J.) 06.08.2014 jbm To
1.The State of Tamil Nadu, Rep. By its Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai 9.
2.The District Collector and District Magistrate, Erode District, Erode 638 011.
3.The Public Prosecutor, High Court, Madras.
S.RAJESWARAN,J.
AND P.N.PRAKASH, J.
jbm H.C.P.No.214/2014 06.08.2014