Madras High Court
Satheesh Alias Thatheeswaran Alias vs Union Of India on 12 August, 2008
Bench: D.Murugesan, M.Sathyanarayanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:12/08/2008
CORAM
THE HONOURABLE Mr. JUSTICE D.MURUGESAN
and
THE HONOURABLE Mr.JUSTICE M.SATHYANARAYANAN
HABEAS CORPUS PETITION (MD) No.146 of 2008
Satheesh alias Thatheeswaran alias
Thamilvanan alias Nagulan,
S/o.Rajendran Pillai, Kilinochi,
Sri Lanka, now confined at Central
Prison, Madurai. ... Petitioner
vs.
1.Union of India, rep.by
The Secretary to Government,
Ministry of Home Affairs,
Internal Security Department,
North Block, New Delhi.
2.The State of Tamil Nadu,
rep.by Secretary to Government,
Public (L & O-F) Department,,
Fort St.George, Chennai-600 009.
3.The District Magistrate and
District Collector
Ramanathapuram District. ... Respondents
Writ petition under Article 226 of the Constitution of India praying
for issuance of a writ of habeas corpus calling for the entire records connected
with the order of the 3rd respondent in Cr.M.P.No.3/NSA/2008 dated 02.01.2008,
quash the same and consequently to set the detenu Satheesh @ Thatheeswaran @
Thamilvanan @ Nagulan, S/o.Rajendran Pillai, now confined at Central Prison,
Madurai, at liberty.
!For Petitioner ... Mr.G.Bhagavath Singh
^For Respondents ... Mr.P.N.Pandithurai,
Addl.Public prosecutor.
:ORDER
(Order of the Court was made by D.MURUGESAN,J.) The petitioner is the detenu. He challenges the order of preventive detention, dated 02.01.2008, clamped on him by the 3rd respondent under the provisions of National Security Act, 1980 on the ground that he was found in activities prejudicial to the security of the State and prejudicial to the maintenance of public order.
2.The said order of detention has been passed on the basis of a complaint given by one Vimala, Sub-Inspector of Police, Keelathooval Police Station and in-charge of National Highway Patrol Party. According to the complainant, on 18.11.2007, at about 11.00 p.m., when she and her team were on a Highway Patrol, they intercepted a 407 Mini-Lorry bearing Regn.No.TN-65 6112 in front of Shri Meenakshi Bhavan Hotel at Sunthanenthal Village, near Paramakudi and on search of the vehicle the team found (1) 50 bags of white colour powder (suspected to be potassium chlorate), weighing 50 kg.each, kept in white colour plastic bags, (2)Nature Power Soap-6, (3)Herbal Care Mysore Sandal Soap-3, (4)Thulasi Soap-6, (5)Medimix Soap-12, (6)Hamam Soap-12, (7)Hamam Soap (Small)- 4, (8)Mesak Tooth Paste-3, (9)Senthil Murugan sealing wax-9 Packets and (10)Isaa Sealing wax-16. On interrogation, the driver of the vehicle by name Subramaniam gave a confession statement implicating one Nethaji and Deniston, who were the master brain for the above smuggling activities. A case was registered in crime No.1/2007 on the file Ramanathapuram Q-Branch CID for the offences under Section 13(1)&(2) of Unlawful Activities (Prevention) Act, 1967, Section 5 of Explosive Substances Act, 1908 and Section 14 of Foreigners Act, 1946 read with Rule 3(a) read with 6(a) of Passport (Entry into India) Rules, 1950. On the basis of the confession given by the driver of the vehicle, the petitioner was arrested on 27.11.2007 and was remanded to judicial custody on 28.11.2007.
3.Investigation in the case revealed that the petitioner is a Sri Lankan National and a member of the political wing of LTTE. He entered into India without valid legal documents and tried to smuggle the materials for making ammunition to the organization of LTTE in Sri Lanka, a banned organisation in India, with the help of the above said Nethaji and Deniston. The detaining authority, having satisfied that the petitioner was found in activities prejudicial to the security of the State and prejudicial to the maintenance of public order, had imposed the impugned order of detention on the petitioner.
4.In challenging the detention order, the learned counsel appearing for the petitioner has raised as many as six grounds. However, in view of the fact that the satisfaction of the detaining authority as to the detenu filing a bail application and coming out on bail is not supported by any material, we are inclined to deal with the said point alone leaving the other points without any consideration.
5.In paragraph 4 of the Grounds of Detention, the detaining authority has stated as follows:
"4.I am aware that, Thiru.Satheesh @ Thatheeswaran @ Thamilvanan @ Nagulan is in Judicial Custody in Central Prison, Madurai in connection with Ramanathapuram Q Branch CID Cr.No.1/2007 u/s 13(1)(2) of Unlawful Activities (Prevention) Act 1967 and Section.5 of Explosive Substances Act 1908 and 14 of Foreigners Act 1946, r/w 3(a) r/w 6(a) of Passport (Entry into India) Rule 1950. Accused Thiru.Satheesh @ Thatheeswaran @ Thamilvanan @ Nagulan was produced before the Judicial Magistrate Court, Paramakudi on 28.11.07 and remanded in the Central Prison, Madurai from 28.11.07. He has not moved any bail petition. There is real possibility of his coming out on bail by filing bail application for the above case in the Court concerned or higher Courts. ..."
6.On a perusal of the above said paragraph, it appears that the detaining authority, after extracting the various provisions of respective Acts under which the detenu has been booked, has merely stated that the detenu has not moved any bail application and there is real possibility of his coming out on bail by filing a bail application in the above case in the court concerned or higher courts.
7.The Court must therefore find out as to whether any materials were placed before the detaining authority to enable him to arrive at the above satisfaction. Firstly, this Court can not overlook the fact that the detenu has been booked for the alleged commission of various offences, not only under the Unlawful Activities (Prevention) Act, 1967 but also under the Explosive Substances Act, Foreigners Act as well as Passport (Entry into India) Rules, 1950, which are more serious and graver offences. That apart, the detenu is a Sri Lankan National. In these circumstances, normally, grant of bail is a remote possibility. 8.That apart, admittedly, the detenu has not filed any bail application, though he was arrested on 27.11.2007 and remanded to judicial custody on 28.11.2007 initially upto 12.12.2007 and thereafter the remand was extended till 03.01.2008. From 28.11.2007 till 03.01.2008, there was no bail application.
9.The question as to how the detaining authority could arrive at a satisfaction as to the detenu filing bail application and the possibility of coming out on bail came up for consideration before the Apex Court in the year 2006 in the judgment in Senthamil Selvi v. State of Tamil Nadu - (2006) 3 SCC (Cri.) 50 and the Apex Court had observed that "though the only requirement for the detaining authority is that he should aware that the detenu is in custody on the date of the detention order and there is likelihood of filing bail application and possibility of coming out on bail, the conclusion so arrived at by the detaining authority cannot be his ipse dixit without supported by any material." As a necessary corollary, the conclusion or the awareness of the detaining authority must be supported by materials and in that event this conclusion or awareness is unsupported by any materials, the detention order would be vitiated on the ground of failure to apply the mind as to the want of materials.
9.The above decision of the Supreme Court was quoted and relied on by a Full Bench of this Court in Kalaiselvi, G. v. The State of Tamil Nadu - 2007(5) CTC 657. We may usefully refer the relevant paragraphs of the said judgment of the Full Court, namely paragraphs 14 and 24, which read as under.
"14.It is trite law that an order of detention is passed with a view to prevent a person acting in a manner prejudicial to the maintenance of public order. When a person is in custody, in normal course, there may not be any apprehension that such person is likely to act in a manner prejudicial to maintenance of public order, as such person is under the constant vigil of Jail authorities. However, it is now well recognised that an order of preventive detention can be passed even in respect of a person in custody, provided the Detaining Authority comes to the conclusion, on cogent material, that there is imminent possibility of the detenu being released from custody and there is compelling necessity to prevent such person acting in a manner prejudicial to maintenance of public order. Where a person is at large, the Detaining Authority is required to come to the conclusion, on the basis of his past conduct, that such person is likely to act in a manner prejudicial to the maintenance of public order and therefore there is a necessity for passing an order of detention. Where such person is already in custody, the Detaining authority is required to come to an additional conclusion that there is imminent possibility of he being released on bail.
*** *** ***
24.From the reading of the aforesaid decisions, it is clear that the conclusion of the detaining authority that there is imminent possibility of the detenu being released on bail must be based on cogent materials and not on the mere ipse dixit of the detaining authority. As has been observed by the Supreme Court, the question as to whether there is possibility of being released on bail depends upon several factors, such as nature of offence, the stage of the investigation, the availability of statutory bail as envisaged under Section 167(2)proviso of Cr.P.C. Even though it is not possible nor desirable to enumerate the circumstances in which bail is likely to be granted, one can venture to say that it is very rare for a court of law to grant bail during pendency of the investigation when there is allegation of commission of serious offence, such as punishable under Section 302 or Section 395 IPC. On the other hand, it is also safe to conclude that in offences relating to prohibition laws or white collar offences, the courts usually grant bail notwithstanding the fact that investigation may be still going on. Similarly, when a charge sheet is not filed within the statutory period contemplated, notwithstanding the seriousness of the allegation, on the expiry of the period, the accused got a right to be released on bail."
10.A careful consideration of the above judgment would make it very clear that unless the satisfaction of the detaining authority as to the detenu filing a bail application and possibility of coming out on bail is supported by materials, such satisfaction would vitiate the detention order on the ground of total non-application of mind.
11.An order 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 the detaining authority was aware of the fact that the detenu is already in custody and there were compelling reasons justifying such detention, despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order of 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 the detenu is likely to be released from custody in the near future. It is well settled that if a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. See AIR 1986 SC 2090 - Binod Singh vs. District Magistrate, Dhanbad.
12.In Kamarinnissa v. Union of India - 1991 Cri.L.J.2058, speaking for the Bench, His Lordship Justice A.M.Ahmadi, while considering the awareness of the detaining authority as to the possibility of coming out on bail has observed as follows:
"In the case of a person in custody, a detention order can validly be passed (1)if the authority passing the order is aware of the fact that he is actually in custody; (ii)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)that on being so released he would in all probability indulge in prejudicial activity and (3)it is felt essential to detain him to prevent him from so doing."
Therefore, to pass an order of detention, the above cogent materials must be available before the detaining authority and in the absence of such cogent materials, the detention order is liable to be interfered.
13.On the facts of this case, the detenu is a Sri Lankan National and he has been charged with various offences punishable under the Unlawful Activities (Prevention) Act, 1967 but also under the Explosive Substances Act, Foreigners Act as well as Passport (Entry into India) Rules, 1950 and on the above back drop, in our considered view, there is no real possibility of him being granted bail, as such possibility is very remote. The remote possibility of getting bail cannot be equated with the real possibility of grant of bail.
14.There is no dispute, in the present case, that except the statement which we have referred to in the earlier portion of the order, the detaining authority was not furnished with any material for himself to arrive at the satisfaction that the detenu would file a bail application and there is possibility of coming out on bail. In the absence of such material, we are of the considered view that the satisfaction arrived at by the detaining authority is vitiated and consequently the detention order is also vitiated.
15.Accordingly, the habeas corpus petition is allowed and the impugned order of detention in Cr.M.P.No.3/NSA/2008, dated 02.01.2008, is quashed. The detenu is directed to be released forthwith, unless his presence is required in connection with any other case.
gb.
To:
1.The Secretary to Government, Union of India, Ministry of Home Affairs, Internal Security Department, North Block, New Delhi.
2.The Secretary to Government, Government of Tamil Nadu.
Public (L & O-F) Department,, Fort St.George, Chennai-600 009.
3.The District Magistrate and District Collector Ramanathapuram District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.