Rosy v. The District Collector And
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 31.08.2015
CORAM:
THE HONOURABLE DR.JUSTICE S.TAMILVANAN AND THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.1362 of 2015 Rosy .. Petitioner Vs 1.The District Collector and District Magistrate, Collectorate Office, Vellore.
2.Government of Tamilnadu Rep.by its Secretary, Home Prohibition and Excise Department, Secretariat, Chennai - 9.
3.The Superintendent, Central Prison, Vellore District.
.. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Habeas Corpus calling for the records in Detention Order C3.D.O.No.39/2015 dated 10.04.2015 on the file of the first respondent and quash the same and direct the respondents herein to produce the body of the detenue Tamilarasan M/A 25 years S/o.Late Asokan now confined in Central Prison, Vellore before this Court and set him at liberty. For Petitioner :
M/s.S.P.Arthi For Respondents :
Mr.M.Maharaja Additional Public Prosecutor
ORDER
(Order of the Court made by S.TAMILVANAN,J.) Challenge is made to the order of detention passed by the first respondent vide Proceedings in C3.D.O.No.39/2015 dated 10.04.2015, whereby the detenu, viz., Thamizharasan, S/o.Late.Asokan, aged 25 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.Though many grounds have been raised in the petition, 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. 3.According to the learned counsel appearing for the petitioner, the detenu has been in remand in the ground case in Cr.No.84/2015 registered by the Latheri Police Station and the bail application moved by the detenu before the learned Principal Sessions Judge, Vellore in Crl.M.P.No.1188/2015 was pending as on the date of the passing of the detention order. But the detaining authority has arrived at the subjective satisfaction by relying upon the similar case, in which the accused Thanikachalam was released on bail by the learned Principal Sessions Judge, Vellore in Crl.MP.No.4556/2014.
The said similar case is not that of the co-accused of the detenu. The learned counsel would add that admittedly, in this case, the bail application moved by the detenu in the ground case is pending. When a bail application is pending, there is no imminent possibility of the detenu coming out on bail. Further, the detaining authority has not made any mention about the 4th adverse case [Cr.No.82/2015] in which the detneu is in remand. 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 there is imminent possibility of the detenu coming out on bail in the said 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 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] . 4.
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.
5.We have heard the learned counsel for both sides with regard to the facts and citation.
6.As evidenced from paragraph 4 of the grounds in the order of detention, the detenu is in remand in the ground case [Cr.No.84/2015] and the bail application filed in the said case was pending before the court concerned as on the date of passing of the detention order. Merely placing reliance on a similar case,
wherein, the accused was granted bail, is not sufficient to pass an order of detention. The said similar case is not that of the coaccused of the detenu. 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 by placing reliance on a similar 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. Also, the Detaining Authority has not made any mention about the 4th adverse case [Cr.No.
82/2015] in which the detenu is in remand, as to whether the detenu has filed any bail application or has he been granted bail in the said case or not. Therefore on this ground also, 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. 7.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 : "......
In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the coaccused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail....... 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 coaccused 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."
(emphasis supplied) Thus, it is evident from the aforesaid judgment that it is not the similar case, i.e. involving similar offence. It should be that the coaccused in the same offence is enlarged on bail and on the basis of which the detenu could be enlarged on bail.
14.In the instant case, admittedly, the said bail orders do not relate to the co-accused in the same case. The accused released in those cases on bail had no concern with the present case. Merely, because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail. 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."
8.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.
9.In the light of the above facts and law, we have no hesitation in quashing the order of detention on the above mentioned grounds.
10.Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order passed by the first respondent is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. Sd/- Assistant Registrar True Copy Sub Assistant Registrar cse
To 1.The District Collector and District Magistrate, Collectorate Office, Vellore.
2.Government of Tamilnadu Home Prohibition and Excise Department, Secretariat, Chennai - 9.
3.The Superintendent, Central Prison, Vellore District.
4.The Joint Secretary to Government Public (Law & Order) Fort St.George,Chennai-9 5.The Public Prosecutor, High Court, Chennai.
H.C.P.No.1362 of 2015 bv(co) pmk.25.9.2015