Sakthi @ Sakthivel v. The Secretary To The

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 18.01.2016

CORAM

THE HONOURABLE MR.JUSTICE R.SUDHAKAR and THE HONOURABLE MR.JUSTICE P.N.PRAKASH H.C.P.No.2889 of 2015 & Crl.M.P.No.423 of 2016 Sakthi @ Sakthivel ..Petitioner/Detenue Vs.

1.The Secretary to Government Government of Tamil Nadu Home, Prohibition and Excise Department Secretariat, Fort St George, Chennai - 600 009. 2.The District Collector and District Magistrate, Erode District, Erode.

.. Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus to call for the records relating to the order of the second respondent herein made in Cr.M.P.No.10/Goonda/2015/C1, dated 23.03.2015 against the detenu namely Sakthi @ Sakthivel, son of Nachimuthu aged about 39 years, who is confined at Central Prison, Coimbatore and set aside the same, consequently directing the respondents herein to produce the body and person of the detenu before this Honourable Court and set him at liberty forthwith.

For Petitioner :

Mr.T.R.Ravi For respondents :

Mr.M.Maharaja Additional Public Prosecutor

O R D E R

[Order of the Court was made by P.N.PRAKASH, J.] Challenge is made to the order of detention passed by the second respondent vide Proceedings in Cr.M.P.No.10/Goonda/2015/C1, dated 23.03.2015, whereby the detenu, viz., Sakthi @ Sakthivel, son of Nachimuthu, aged 39 years, was ordered to be detained under the provisions of 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, Mr.T.R.Ravi, 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 [Cr.No.87/2015] registered by the Erode South Police Station and there is no mention whether the detenu has filed any bail application in the ground case. But the detaining authority has stated in the detention order that there is a compelling necessity to detain him in custody under Act 14 of 1982. He has not specifically stated that there is a "REAL POSSIBILITY" or "IMMINENT POSSIBILITY" of the detenu coming out on bail in the ground case. He adds that absence of the said expression in the grounds of detention would vitiate the order of detention. If that be so, there is no imminent possibility of the detenu coming out on bail.

No cogent materials are available before the Detaining Authority to conclude / to apprehend that the detenu would likely to get bail in the ground case. 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 the detention. In support of his contention that the expression in explicit terms about the imminent possibility of the detenu coming out on bail should be there in the order of detention and the absence would vitiate the order of detention, 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 5 of the Grounds of Detention, there is no mention about the bail application filed by the detenu in the ground case [Cr.No.87/2015] pending before the Court concerned as on the date of passing of the detention order. Also, as evidenced from the above ground, the Detaining Authority has not stated specifically that there is an "IMMINENT POSSIBILITY" or "REAL

POSSIBILITY" of the detenu coming out on bail. This would show that the Detaining Authority passed the order of detention mechanically and without application of mind and the facts do not justify the detention. Moreover, the expression, in explicit terms about the imminent possibility of the detenu coming out on bail is absent. If that be so, the absence of the said expression would certainly vitiate the order of detention as held in 2005 [1] CTC 577 [cited supra]. Therefore, the subjective satisfaction arrived at by the detaining authority that if the detenu is released on bail, he will indulge in similar activities that are prejudicial to the maintenance of public order, would be a mere ipse dixit and that would vitiate the order of detention and the same is indicative of total nonapplication of mind on the part of the Detaining Authority. Therefore, the impugned order is passed on mere Ipse-dixit and the order of detention cannot be sustained in the eye of law.

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 by the Division Bench of this Court as follows:

"3.It is settled law as laid down by the Supreme Court in the decisions Kamarunnisa V. Union of India, 1991 [1] SCC 128 : 1991 SCC [Cri.] 88 and Rivadeneyta Ricardo Augustin V. Government of Delhi, 1994 Supp. [1] SCC 597 : 1994 SCC [Cri.] 354 ; that 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.

4.On going through the relevant paragraph of the grounds of detention, we only notice that there is a mere reference of the possibility of the detenu coming out on bail. Admittedly, the expression, in explicit terms about the imminent possibility of the detenu coming out on bail, is absent. In the absence of such expression in the grounds of detention, we are to conclude that the impugned order of detention is liable to be set aside."

[emphasis supplied] [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......

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."

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 second respondent is set aside. The detenu, is directed to be released forthwith unless his presence is required in connection with any other case. Consequently, Crl.M.P.No.423 of 2016 filed to fix an early date for final hearing of the Habeas Corpus Petition stands closed. Sd/- Asst.Registrar /true copy/ Sub Asst. Registrar sl To 1.The Secretary to Government Government of Tamil Nadu Home, Prohibition and Excise Department Secretariat, Fort St George, Chennai - 600 009. 2.The District Collector and District Magistrate, Erode District, Erode.

3.The Joint Secretary to Government, Public(Law and Order) Fort.Saint.George, Chennai-9.

4.The Superintendent, central Prison, coimbatore.

5.The Public Prosecutor, High Court, Madras.

+1cc to Mr.T.R.Ravi Advocate Sr.2774 H.C.P.No.2889 of 2015 & Crl.M.P.No.423 of 2016 VGI(CO) RVR 04/02/2016