Madras High Court
Mumtaj vs The State Of Tamil Nadu on 18 August, 2014
Author: S. Rajeswaran
Bench: S. Rajeswaran, P.N. Prakash
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.08.2014 CORAM: THE HON'BLE MR. JUSTICE S. RAJESWARAN and THE HON'BLE MR. JUSTICE P.N. PRAKASH H.C.P. No.641 of 2014 Mumtaj Petitioner vs. 1 The State of Tamil Nadu represented by its Secretary to Government Prohibition and Excise Department (Home) Chennai 600 009 2 The Commissioner of Police Greater Chennai Egmore, Chennai 600 008 Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India seeking a writ of habeas corpus calling for the records relating to the detenu's detention order passed by the second respondent Memo No.2044/BDFGISSV/2013 dated 23.12.2013 and set aside the same and produce the detenu Mohamed Rafeeq, S/o Nainar Mohamed, aged about 23 years, now detained in Central Prison Puzhal, Chennai, before this Court and set him at liberty forthwith. For petitioner Mr. G. Punniyakotti For respondents Mr. P.Govindarajan Additional Public Prosecutor 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 No.2044/BDFGISSV/2013 dated 23.12.2013, whereby the son of the petitioner by name Mohamed Rafeeq, S/o Nainar Mohamed, aged about 23 years, 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 23.12.2013, 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 R-8 Vadapalani Police Station Cr.No.407/2006 380 & 511 IPC 2 R-8 Vadapalani Police Station Cr.No.847/2013 457, 380 IPC 3 R-8 Vadapalani Police Station Cr.No.1410/2013 454,380 IPC
(ii) Ground Case:
Sl No. Name of the Police station and Crime No. Section of law 1 R-8 Vadapalani Police Station Cr.No.1437/2013 341, 397, 336, 427 and 506(ii) IPC
3.Though many grounds have been raised in the petition, Mr.G.Punniyakotti, 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 2nd adverse case [Cr.No.847/2013], 3rd adverse case [Cr.No.1410/2013] and also in the ground case in Cr.No.1437/2013 registered by R-8 Vadapalani Police Station and the detenu has not moved any bail applications in the said cases as on the date of the passing of the detention order. He would also contend that the detaining authority has placed reliance on the statement of the sponsoring authority to the effect that the relatives of the detenu are taking steps to take him out on bail by filing bail applications in the 2nd adverse case, 3rd adverse case and in the ground case. The learned counsel would add that admittedly, in this case, the detenu has not moved any bail applications in 2nd adverse case, 3rd adverse case as well as in the ground case. When no bail application is filed, there is no real possibility of the detenu coming 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 and in the 2nd and 3rd adverse cases and there is imminent possibility of the detenu coming out on bail in the said cases. 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 2nd adverse case, 3rd adverse case and 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] and [c] 2012 [7] SCC 181 [HUIDROM KONUNGJAO SINGH VS. STATE OF MANIPUR] .
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 4, on which much reliance has been placed by the learned counsel appearing for the petitioner:
"4.I am aware that Thiru.Mohamed Rafeeq is in remand in R-8 Vadapalani Police Station Crime Nos.847/2013, 1410/2013 and 1437/2013 and he has not moved any bail application for R-8 Vadapalani Police Station Cr.Nos.847/2013, 1410/2013 and 1437/2013 so far. The sponsoring authority stated that Thiru.Mohamed Rafeeq's relatives are taking action to take him out on bail in R-8 Vadapalani Police Station Cr.Nos. 847/2013, 1410/2013 and 1437/2013 by filing bail application before the appropriate court. It is pertinent to note that in a similar case registered u/s.457 and 380 IPC at P-6 Kodungaiyur Police Station Crime No.200/2009 bail was granted by the Learned XIV Metropolitan Magistrate Court, Egmore, Chennai in Crl.M.P.No.674/2009. In a similar case registered at R-4 Soundarapandiyanar Angadi Police Station Cr.No.1173/2011 under Sections 341, 294(b), 307, 392, 397, 336, 427 and 506(ii) IPC bail was granted by the Court of Principal Sessions Judge, Chennai, in Crl.M.P.No.11090/2011. Hence, I infer that there is a real possibility of his coming out on bail by filing bail application for R-8 Vadapalani Police Station Cr.Nos.847/2013, 1410/2013 and 1437/2013 before the appropriate court since in similarly placed cases bails are granted by courts after a lapse of time. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of public order. Further, the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of public order. On the materials placed before me, I am fully satisfied that the said Thiru.Mohamed Rafeeq is also a Goonda and that there is a compelling necessity to detain him in order to prevent him from indulging in such further activities in future which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14 of 1982."
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.1437/2013], 2nd adverse case [Cr.No.847/2013] and in the 3rd adverse case [Cr.No.1410/2013] and he has not filed any bail applications in the said 2nd adverse case, 3rd adverse case as well as in the ground case as on the date of passing of the detention order. Merely stating that steps have been taken on behalf of the detenu by the relatives of the detenu to file bail application in the said cases is not sufficient to pass an order of detention. Excepting recording a statement that the relatives of the detenu are taking steps to file bail applications, no other material are shown as to the steps taken to file bail application in the 2nd adverse case, 3rd adverse case and in the ground case. When no bail application is filed, there is no imminent possibility of the detenu coming out on bail. Therefore, the subjective satisfaction arrived at by the detaining authority that there is real possibility of his coming out on bail in the ground case as well as in the 2nd and 3rd adverse cases 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 alone the impugned order is liable to be set aside. Hence, the order of detention 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)
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 Memo No.2044/BDFGISSV/2013 dated 23.12.2013 passed by the second respondent is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.
(S.R.J.) (P.N.P.J.)
18.08.2014
gms
To
1 The Secretary to Government
Prohibition and Excise Department (Home)
Government of Tamil Nadu
Chennai 600 009.
2 The Commissioner of Police
Greater Chennai
Egmore, Chennai 600 008.
3 The Public Prosecutor
Madras High Court
Chennai
S. RAJESWARAN, J.
and
P.N. PRAKASH, J.
gms
H.C.P. No.641 of 2014
18.08.2014