Madras High Court
Manickam vs The Secretary To The Government Of India on 14 June, 2007
Author: D.Murugesan
Bench: D.Murugesan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14/06/2007 CORAM: THE HONOURABLE MR.JUSTICE D.MURUGESAN and THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM HCP(MD) No.64 of 2007 and HCP(MD) No.65, 67, 68 & 69 of 2007 Manickam, S/o.Raju Asari ... Petitioner in HCP No.64/2007 Senthilkumar, S/o.Kovai Arumugam ... Petitioner in HCP No.65/2007 Rajasekar, S/o.Kuppuraj ... Petitioner in HCP No.67/2007 Arjun Sampath, S/o.Sampath ... Petitioner in HCP No.68/2007 Sjujith, S/o.Baskaran ... Petitioner in HCP No.69/2007 vs. 1.The Secretary to the Government of India, Department of Home Affairs, (Internal Security), North Block, New Delhi. 2.The Chief Secretary, Government of Tamil Nadu, Public (Law and Order) Department, Fort St.George, Chennai-9. 3.The Commissioner of Police, Trichirappalli City. ... Respondents in all the HCPs. HCP (MD) No.64/2007: Petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus by calling for the records of the proceedings of the 3rd respondent in CPO/TC/IS/NSA/D.O.No.2/2006, dated 10.12.2006, detaining the petitioner under National Security Act in the Central Prison, Trichirappalli and setting aside the same and consequently to set the petitioner at liberty. HCP (MD) No.65/2007: Petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus by calling for the records of the proceedings of the 3rd respondent in CPO/TC/IS/NSA/D.O.No.3/2006, dated 11.12.2006, detaining the petitioner under National Security Act in the Central Prison, Trichirappalli and setting aside the same and consequently to set the petitioner at liberty. HCP (MD) No.67/2007: Petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus by calling for the records of the proceedings of the 3rd respondent in CPO/TC/IS/NSA/D.O.No.4/2006, dated 11.12.2006, detaining the petitioner under National Security Act in the Central Prison, Trichirappalli and setting aside the same and consequently to set the petitioner at liberty. HCP (MD) No.68/2007: Petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus by calling for the records of the proceedings of the 3rd respondent in CPO/TC/IS/NSA/D.O.No.6/2006, dated 29.12.2006, detaining the petitioner under National Security Act in the Central Prison, Cuddalore and setting aside the same and consequently to set the petitioner at liberty. HCP (MD) No.69/2007: Petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus by calling for the records of the proceedings of the 3rd respondent in CPO/TC/IS/NSA/D.O.No.5/2006, dated 11.12.2006, detaining the petitioner under National Security Act in the Central Prison, Trichirappalli and setting aside the same and consequently to set the petitioner at liberty. !For Petitioners ... Mr.N.Anantha Padmanabhan in all the HCPs. ^For Respondent No.1 ... Mr.P.Subburaj, in all the HCPs ACGSC. For Respondents 2 & 3 ... Mr.N.Senthurpandian, in all the HCPs Addl.Public Prosecutor. :COMMON ORDER
(Order of the Court was made by D.MURUGESAN,J) The detention orders passed by the third respondent under the National Security Act, 1980 against the petitioners in all these petitions relate to one incident. The challenge to the detention orders is also on same grounds. Hence all the writ petitions are taken up for hearing together and are disposed of by this common order.
2.One Manickam, S/o.Raju Asari, challenges the order of detention dated 10.12.2007, clamped on him in HCP No.64/2007. In HCP No.65/2007, one Senthilkumar, S/o.Kovai Arumugam, challenges the order of detention dated 11.12.2006 clamped on him. In HCP No.67 of 2007, the challenge is to the order of detention dated 11.12.2006 clamped on one Rajasekar, S/o.Kuppuraj. In HCP No.68/2007, one Arjun Sampath, son of Sampath, is challenging the order of detention dated 29.12.2006 clamped on him by the third respondent. In HCP No.69 of 2007, the order of detention dated 11.12.2006 is being challenged by one Sujith, S/o.Baskaran, the detenu.
3.The facts leading to the orders of detention are as follows:
(a)A life size concrete statue of Thiru E.V.Ramasamy, founder of Dravidar Kazhagam, was to be installed near the Srirangam Police Station by the members of Periyar Thathuva Maiyam and it was kept ready, covered with sacs, on the pedestal for unveiling. It was also in front of the Rajagopuram of Srirangam Temple. It was objected to by Hindu Organizations. Following the threat, the members of Periyar Thathuva Maiyam were giving protection to the statue to be unveiled. Apart from that, the matter was brought to the notice of the police as well and accordingly the police personnel were also deployed.
(b)Felt insulted over the proposal of installation of the statue in front of the Rajagopuram, one Raghavan, the State Deputy General Secretary of Hindu Makkal Katchi, determined to stop the installation of the statue and sought the help of his party leader Arjun Sampath, who was in Coimbatore, over phone and in turn, the said Arjun Sampath sent one Manickam, District Vice-
President, Coimbatore, Senthil Kumar, District General Secretary, Coimbatore, Rajasekar, District Youth Wing Secretary, Coimbatore and Sujith, Madukkari Union Secretary, all Hindu Makkal Katchi Office bearers, to Srirangam and they met Raghavan on 05.12.2006 and conspired to damage the statue.
(c)On 07.12.2006 at about 4.45 hours, the above said Manickam, Raghavan, Senthil Kumar, Rajasekar, Sujith and their associates, armed with deadly weapons and hammers, came to the spot where the statue was kept. While Manickam and Senthil Kumar, armed with veecharuvals, were standing on the main road, Rajasekar and Sujith, armed with hammers, climbed on the pedestal and hit the head of the statue and took out the head separately and threw away. In view of the above, there were lot of violence at various parts of the State, wherein a temple of Lord Vinayaga was damaged by some miscreants and it created ill- feelings between the supporters of Dravidar Kazhagam and others and developed hatred among the society and affected public order and public tranquility. Therefore, the Commissioner of Police, Trichirappali City, the detaining authority, had clamped the orders of detention on all the petitioners under Section 3(2) of the National Security Act, 1980 (Central Act 65 of 1980).
4.The detention orders are questioned mainly on the following grounds, namely,
(i)The impugned orders of detention are in contravention of proviso to sub-section (3) of Section 3 of the National Security Act, 1980 (hereinafter referred to as "the Act"), as the detention orders do not specify any period of detention, which is mandatory and therefore, in the absence of any specified period, the orders of detentions are vitiated.
(ii)The impugned detention orders are vitiated, since the State Government, which is mandated to communicate its decision of approval of the detention orders to the Central Government within seven days under sub-section (5) of Section 3 of the Act, have not complied with the said mandatory provision.
(iii)The detenus are entitled to make an effective representation, which is a fundamental right guaranteed under Article 22(5) of the Constitution of India and inasmuch as the detaining authority had merely passed the detention orders on surmises and no materials were available with him to form subjective satisfaction in respect of the subsequent events resulted in damage to idols, etc. and in the absence of those materials furnished to the detenus, the detenus were deprived of their right to make an effective representation and this infringement of fundamental right vitiates the orders of detention.
(iv)The impugned detention orders were passed in contravention of Section 17 of the Tamil Nadu Act 14 of 1982; and lastly
(v)the detaining authority has erred in forming the subjective satisfaction that there is real possibility of the detenus coming out on bail, when no bail applications were moved by them at all.
5.We have elaborately heard both the learned counsel for the petitioners and the learned Additional Prosecutor as well.
6.Ground No.(i):
The sum and substance of the contention of the learned counsel for the petitioners is that inasmuch as the Appropriate Government, namely the State Government, is empowered to authorise the District Magistrate or the Commissioner of Police, as the case may be, to pass detention orders only for a period of three months with a right to extend the said period by another period of three months on each time, the detaining authority cannot pass orders of detention more than the period prescribed in the Government Order, particularly, in these cases, in G.O.Ms.No.1141 Public (Law and Order-F) Department, dated 09.10.2006. He would also submit that in the said G.O., no period empowering the District Magistrate or the Commissioner of Police is prescribed to enable them to exercise the powers under sub-section (2) of Section 3 of the Act.
7.To appreciate the above said contention, the provisions of the Act has to be carefully looked into. Section 3 of the Act reads as follows:
"3.Power to make orders detaining certain persons.--(1)The Central Government or the State Government may,--
(a)if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India, or
(b)if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.
2)The Central Government or the State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.
Explanation.--- .....
(3)If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section.
Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
(4)when any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government.
Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detentions, this sub-section shall apply subject to the modification, that, for the words "twelve days', the words "fifteen days"
shall be substituted.
(5)when any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order."
8.Clause (a) of sub-section (1) of Section 3 of the Act relates to the power of the Central Government or the State Government, as the case may be, to direct a person be detained with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers or the security of India. Clause (b) of sub-section (1) of Section 3 relates to the very same power of the Central Government or the State Government, as the case may be, to detain a foreigner with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India.
9.To the given facts and circumstances of the case, the said provisions are not applicable, as admittedly, the detention orders were issued under sub-section (2) of Section 3 of the Act. By that section, the Central Government or the State Government, as the case may be, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained. Basically, the said provision empowers the Central Government or the State Government, who are Appropriate Government as defined under Section 2(1)(a) of the Act to pass orders of detention. The provision reads as under:
"(a)"appropriate Government" means, as respects a detention order made by the Central Government or a person detained under such order, the Central Government, and as respect a detention order made by a State Government or by an officer subordinate to a State Government or as respects a person detained under such order, the State Government;"
However, sub-section (3) of Section 3 enables the State Government to empower the District Magistrate or the Commissioner of Police, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of the concerned District Magistrate or the Commissioner of Police, to exercise the power conferred on the State Government under sub-section (2) of Section 3 of the Act. A limitation is cast upon the State Government while exercising such power in the proviso to sub-section (3) of Section 3, which contemplates that while conferring such power on the District Magistrate or on the Commissioner of Police, the State Government should restrict such an order only for a period of three months initially, subject to extension by three months on each time.
10.A combined reading of sub-section (2) of Section 3 as well as the proviso to sub-section (3) to Section 3 of the Act would go to show that when the State Government empowers the District Magistrate or the Commissioner of Police to exercise the power conferred by the statute on the State Government under Section 3(2), the period is restricted initially for three months within which period the District Magistrate or the Commissioner of Police would require to pass orders of detention. The restriction of period has relevance in the context of sub-section (3) of Section 3, namely the District Magistrate or the Commissioner of Police can exercise the power under sub-section (2) of Section 3 only having regard to the circumstances prevailing or likely to prevail in the area under their jurisdiction and it cannot be an unlimited power for being vested on such authorities by the State Government, since the power to pass detention order vests only with the appropriate Government. By virtue of sub- section (3) of Section 3, the power is conferred on the State Government to delegate the same to the authorities. This restriction of period is only for the authorities to pass orders under sub-section (2) of Section 3 and such period does not, in any way, has relevance to the period of detention. In fact, Section 13 of the Act is very clear. As per the said section, the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 12 shall be twelve months from the date of detention. Sub-section (2) of Section 3 does not restrict the period of detention initially for three months and in the absence of any restriction, it must be construed that as per sub-section (2) of Section 3 read with Section 13 of the Act, the period of detention is 12 months and there cannot be any restriction on the said period. In the circumstances, we are not inclined to accept the contention of the petitioners that the orders of detention are vitiated since the detaining authority has not mentioned the period of detention in restricting their operation only for a period of three months.
11.Ground No.(ii).
Sub-Section (5) of Section 3 of the Act provides that when any order is made or approved by the State Government, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. The communication of report of the detention order to the Central Government assumes importance in view of the fact that the power to revoke the detention orders is also conferred on the Central Government under Section 14 of the Act. In the event the report is received, the Central Government may suo-motu consider the said report and pass orders accordingly. In that context, the communication of the report to the Central Government within a period of seven days of the order of detention or the approval is mandatory and any violation would certainly vitiate the detention order.
12.The learned Additional Public Prosecutor had produced the records to show that the reports on the detention of the petitioners were communicated to the Central Government within a period of seven days of approval as contemplated under sub-section (5) of Section 3 of the Act. From the communication it is seen that in respect of the detenu Arjun Sampath (Petitioner in HCP No.68/2007), the same was communicated to the Central Government on 04.01.2007 vide Letter No.11/L&O-F/2007-1, dated 03.01.2007 and in respect of detenu Manickam (Petitioner in HCP No.64/2007), the report was communicated to the Central Government on 21.12.2006 vide Letter No.15677/L&O-F/2006-1, dated 19.12.2006 and in respect of detenus Senthilkumar (Petitioner In HCP No.65/1997) and Rajasekar (Petitioner in HCP No.67/2007) the report about their detention has been communicated on 21.12.2006 vide Letter No.15678/L&O-F/2006-1, dated 19.12.2006. We are convinced with the fact that the State Government has complied with the mandatory provision of sub-section (5) of Section 3 of the Act and accordingly we reject the contention of the petitioners in this regard.
13.Ground No.(iii).
According to the learned counsel for the petitioners, the detention orders were passed only on surmises and no materials were available relating to the subsequent incidents, namely violence that had crept in throughout the State as a fall-out of the incident that took place on 07.12.2006. This being a factual aspect, we have perused the book-lets that was supplied to the detenus and produced before us. In pages from 48 to 54 [HCP (MD) No.64/2007], we could see that enough materials were available before the detaining authority to pass the detention orders and these materials have also been supplied to the detenus and it cannot now be contended that the detaining authority did not have materials to form the subjective satisfaction to pass the detention orders relating to the incidents that had taken place subsequent to the incident on 07.12.2006. Moreover, this being factual position with regard to the sufficiency of the materials for the detaining authority to form subjective satisfaction, we reject the said contention.
14.Ground No.(iv).
The contention of the learned counsel for the petitioners is that in terms of Section 17 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest-offenders, Goondas, Immoral Traffic Offenders and Slum-grabbers Act, 1982 (Tamil nadu Act 14 of 1982), the State Government cannot invoke the provisions of the National Security Act, 1980 for the purpose of detention. Section 17 of the Tamil Nadu Act 14/1982 read as under:
"17.Detention orders against any bootlegger, drug-offender, forest- offender, goonda, immoral traffic offender or slum-grabber to be made under this Act and not under National Security Act.--On and after the commencement of this Act, no order of detention under the National Security Act, 1980 (Central Act 65 of 1980) shall be made by the State Government or any of their officers under that Act in respect of any bootlegger, drug-offender, forest-offender, goonda, immoral traffic offender or slum-grabber in the State of Tamil Nadu, on the ground of preventing him from acting in any manner prejudicial to the maintenance of public order, where an order of detention may be or can be made against such person, under this Act."
15.A perusal of the said section shows that after the commencement of the said Act, the State Government or any of its officers under the said Act shall not pass detention orders under the National Security Act in respect of any bootlegger, drug-offender, forest-offender, goonda, immoral traffic offender or slum-grabber as defined under the said Act. This exclusion is specific only in respect of the above categories in passing the detention order. The said section would not apply in the event the State Government, which is also appropriate authority as defined in Clause(1)(a) of Section 2 of the National Security Act, 1980 to pass orders of detention in exercise of powers under sub- section (2) of Section 3 of the Act. By virtue of the power conferred under Section 3(2) of the Act, the Statement Government may, if satisfied, with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community may make an order directing that such person be detained. The power vested in the State Government under the National Security Act is in regard to the security of the State.
16.In the present case, in the detention orders, the detenus having not been branded either as a Goonda or a bootlegger, etc. and going by the grounds of detention, they have been clamped with the orders of detention only taking into consideration the security of the State. It will be useful to refer to the reasoning given by the detaining authority in paragraphs 5 and 7 of the Grounds of Detention (HCP No.64/2007), which is identical in the other HCPs, reads as under.
"5.The act of such vandalism by the accused Manickam created a sense of panic and terror among the common public and created a feeling of insecurity, not only to the people residing in the area in which the Periyar Statue was damaged but also in the minds of people of the entire State and as a result of which the public order and tranquility were paralysed. The several parts of State witnessed several cases of violence, stone pelting on buses, demonstrations etc. as repercussion to the incident in spite of best efforts by Police. In order to defuse tension and to create confidence in the minds of all sections of people, it is expedient and warranted to curb the illegal activities of the accused Manickam and his associates and consequently which necessitated me to pass an order of detention u/s 3(2) of the NATIONAL SECURITY ACT 1980.
6.......
7.The disturbance caused by such disruptive act of the accused Manickam with his associates in Srirangam area, cannot be considered as a normal Law and Order problem but as disturbance of public order and public peace as large section of public developed feeling of outrage, insecurity and the normal life of them was affected and further after having scrutinized the entire records such as FIR, case diary file, mahazar, confession statement and other relevant records placed before me in Srirangam PS Cr.No.749/06 u/s.147, 148, 153(A) and 3 & 4 of Tamil Nadu Properties (Prevention of Damage and Loss) Act and 25(1) Indian Arms Act and after applying my mind judicially, I am satisfied that the act of the accused Manickam, Male aged 41/2006, Son of Raju Asari, Bomman Chetty Colony, Selvapuram Road, Chetty Street, Coimbatore, totally affected the public order and public peace while compelled me to pass an order under Section 3(2) of the National Security Act 1980 as there is no other opinion to curb his future activities."
17.A perusal of the above would indicate that it has nothing to do with branding the detenus as "Goondas', etc. to bring them under the provisions of the Tamil Nadu Act 14/1982 and thereby seeking application of Section 17 of the said Act. Inasmuch as the orders of detention have been passed in the interest of the National Security and the power is traceable under sub-section (2) of Section 3 of the National Security Act and while the State Government has invoked the said power, Section 17 of the Tamil Nadu Act 14/1982 would not come into operation. Hence the contention is liable to be rejected and accordingly, the same is rejected.
18.Ground No.(v).
It is the specific case of the petitioners that the satisfaction of the detaining authority as to the real possibility of the detenus coming out on bail, when none of the detenus have moved any bail application before any Court, is not supported by any materials and in the absence of materials the orders of detention are vitiated due to non-application of mind.
19.In the grounds of detention (HCP No.64/2007), in paragraph No.8, which is identical in all other grounds of detention, the detaining authority has stated as under:
"8.I am aware that the accused Manickam is in remand in Srirangam PS Cr.No.749/06 and he has not moved any bail application. I am also aware that there is a real possibility of his coming out on bail by filing bail application for the above case, since in similar cases, bails are granted by the concerned court or higher courts after lapse of time. ..."
It was firstly contended by the counsel for the petitioners that in the absence of satisfaction as to the "imminent" possibility of the detenus coming out on bail as the detaining authority has merely mentioned that there is only 'real' possibility of coming out on bail, the detention orders are vitiated. We are not satisfied with the said submission. A similar argument was advanced before a Full Bench of this Court and the Full Bench in the judgment reported in 2005 M.L.J. (Cri.) 1101 - Thirupathi, K. v. District Magistrate and District Collector, Tiruchirappalli, has held that the usage of word "imminent" is not necessary and the other convincing expressions like "real possibility", "very likely" or "most likely" can also be used by the detaining authority to reflect its satisfaction with regard to the immediate release of the detenu on bail. Hence the said submission of the learned counsel for the petitioner is liable to be rejected. Accordingly the same is rejected.
20.It was next contended that when factually none of the detenus had filed any bail application, could the detaining authority form an opinion and satisfy himself that there was real possibility of the detnuus coming out on bail. Before delve upon the said issue, it must be noted that the authority is not precluded from passing an order of detention against a person while he is in detention or in jail, but the relevant facts in connection with the making of the order may differ and they make a difference in the application of the principle that a detention order can be passed against person while in jail. However, the satisfaction of the Court as to whether an order of detention can be passed against a person who is in detention or in jail will always depend upon the circumstances of each case. In the Constitutional frame-work, the power directing preventive detention given to the appropriate authorities must be exercised in exceptional cases in strict compliance of the provisions of the statutes dealing with preventive detentions. There must be compelling necessity and the consequence awareness of the facts necessitating preventive custody of a person for a social defence. In case, if a man who is in custody and there is no imminent possibility of his being released on bail, the power to pass preventive detention should not be exercised and such exercise would result only in interference by the Court.
21.Keeping the above broad principles in mind, we will have to test the satisfaction arrived by the detaining authority as to the real possibility of the detenus coming out on bail. This issue came up for consideration before a Division Bench of this Court in the case reported in 2006-1-L.W.(Cri)24 - Vazhivittan v. The State of Tamil Nadu & another. That case also arose under similar circumstances. In fact, the Division Bench also extracted verbatim the words used by the detaining authority in the grounds of detention, which read as follows:
"5.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. ..."
The Division Bench, after referring to the Full Bench Judgment reported in 2005 M.L.J. (Cri.) 1101 - Thirupathi, K. v. District Magistrate and District Collector, Tiruchirappalli, has finally held as follows:
"6.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 detenue 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."
22.In fact, a similar question also came up for consideration before this Court in H.C.P. (MD)No.36 fo 2007, decided on 21.03.207. That was also a case where the detaining authority has arrived at the subjective satisfaction to pass the order of detention as to the real possibility of the detenu coming out on bail when there was no application for bail moved or pending. Following the above reported judgment in 2006-1-L.W.(Cri)24, the Court has held in paragraph No.7 of the judgment as follows:
"7.After hearing both sides and looking into the available materials, this Court is of the considered opinion that it is a fit case where the order has got to be quashed for the simple reason that what is found in the order is only a mere statement that there is a real possibility of his coming out on bail. It remains to be stated that no materials were available in that regard. In the case on hand, the detaining authority has gone to the extent of stating that he has not moved any bail application. Thus, it would be quite evident that no bail application was pending. Under the circumstances, when a bail application has not been filed and pending, the real possibility of his coming out on bail could not be ascertained, and hence, it was a mere statement made by the authority, which, in the opinion of this Court, would not satisfy the legal requirement. Following the decision of this Court referred to above, this Court has to set aside the order."
23.The satisfaction as to the real possibility or imminent possibility of the detenu to come out on bail is not a mere formality. Such a satisfaction should be supported by material. The satisfaction as to the imminent or real possibility of the detenu to come out on bail can very well be supported by materials, namely, the detenu had moved a bail application before the court and such application was pending. In case, the detenu had not moved bail application and consequently no bail application was pending before the courts, the satisfaction as to the real possibility or imminent possibility of the detenu to come out on bail could be justified on other materials like the preparation, attempt or contemplation by or on behalf of the detenu to move the bail application and the same was within the knowledge of the detaining authority. However, when there was no bail application filed or pending and in the absence of any other material to show that there was an attempt either by the detenu or on behalf of the detenu to move the courts for bail, the satisfaction of the detaining authority as to the real possibility or imminent possibility of the detenu coming out on bail would be non-application of mind for want of any materials. In this context, it would also be relevant to note that the detaining authority had only formed his opinion and satisfied himself that the detenus may file applications and come out on bail after lapse of time, which is not either definite or atleast in the near future. That apart, one more aspect is to be stated at this stage. In these cases, the detaining authority has also stated that in similar cases bails are granted by the concerned court or higher courts after lapse of time. In our opinion, the words 'real possibility' or 'imminent possibility' cannot go together with the words 'after lapse of time'. The fact that there is possibility of granting bail after lapse of time would definitely mean that there is no imminent or real possibility of the detenu to come out on bail and consequently there is no compelling necessity to pass an order of detention. One of the paramount satisfaction of the detaining authority is that the detenu is likely to come out on bail in the near future. As the law on this aspect has been consistently held by this Court and our attention is not brought to the notice of any other judgments of the Apex Court, we do not find that any other view is possible.
24.In two more judgments reported in (a) (2004) M.L.J. (Crl.) 742 - Babu vs. The Government of Tamil Nadu; and (b)[2006 (1) T.N.L.R. 197 (Mad)] - Rathinammal vs. The State of Tamil Nadu and another also, this Court, under similar circumstances, quashed the orders of detention on the ground that there cannot be any imminent possibility of the detenu coming out on bail since no such bail application had ever been filed or kept pending before the Court prior to the passing of the detention order. Applying the ratio laid down in the above referred to judgments to the given facts of the case, the detention orders must be set aside.
25.However, our attention was drawn by the learned Additional Public Prosecutor to the order of a Division Bench of this Court dismissing HCP (MD)No.423 of 2006, dated 22.02.2007, filed by one S.Latha Raghavan on behalf of the detenu by name R.Raghavan questioning a similar order of detention passed in respect of the same incident. We have carefully perused the said order. In the said habeas corpus petition, the above ground on which we agree with the petitioners, was neither raised nor considered nor rejected. The said order, therefore, cannot stand in the way of the petitioners to succeed on Ground No.(v).
26.Though we have negatived the grounds raised in Ground Nos. (i) to
(iv), in view of our finding in Ground No.(v), the petitioners must succeed in all these petitions.
27.Accordingly, the habeas corpus petitions are allowed and the orders of detention clamped on the petitioners by the third respondent are quashed. The detenus are directed to be released forthwith, unless their custody is required in connection with any other case.
To:
1.The Secretary to the Government of India, Department of Home Affairs, (Internal Security), North Block, New Delhi.
2.The Chief Secretary, Government of Tamil Nadu, (Public Law and Order) Department, Fort St.George, Chennai-9.
3.The Commissioner of Police, Trichirappalli City.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.