Prabakaran v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 03.03.2015

CORAM:

THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN H.C.P.No.2564 of 2014 Prabakaran ..Petitioner Vs 1.The Secretary to Government, Home, Prohibition & Excise Department,(XVI) Government of Tamil Nadu,Fort St.George, Chennai 600009 2.The District Magistrate and District Collectort, Salem District, Salem.

..Respondents Prayer:- This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to call for the records in connection with the order of detention passed by the second respondent dated 20.08.2014 in C.M.P.No.10/B.L.A./C2/2014 against the petitioner's brother-in-law, ,Prabu, aged 25 years, S/o Subramanian, who is confined at Central Prison, Salem and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.

For Petitioner :

Mr.D.Veerasekaran For Respondents :

Mr.C.Emalias, Additional Public Prosecutor .

ORDER

This Habeas Corpus Petition is filed, by the brother-inlaw of the detenu, namely, Prabu, aged 25 years, Son of Subramanian, to issue a Writ of Habeas Corpus, to call for the records, in C.M.P.No.10/B.L.A./C2/2014 dated 20.08.2014, passed by the 2nd Respondent, detaining the detenu, under Section 3(1) 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 14/1982), branding him as a "Bootlegger, in the Central Prison, Salem, to quash the same and to direct the Respondents to produce the body of the detenu and set him at liberty forthwith.

2. Though several grounds have been raised in the petition, Mr.D.Veerasekaran, the learned counsel appearing for the

petitioner, confines his argument only in respect of nonapplication 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.419/2014 and he moved bail application before the Principal Sessions Judge, Salem in C.M.P.No.3130/2014 and the same was dismissed and again, he moved bail application before this Court and he was granted bail by this Court, in Crl.O.P.No.22262/2014. He also moved bail in the first adverse case in Cr.No.207/2013, before the Principal Sessions Judge, Salem and the bail was granted in C.M.P.No.2671/2013 on 1.8.2013 but in the second adverse case in Crime No.418/2014, he has not moved any bail application as on the date of the passing of the detention order. 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 / apprehend that the detenu is likely to get bail in the adverse case. Therefore, the learned counsel has submitted 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 the detenu would coming out on bail 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] ; [c] 2012 [7] SCC 181 [HUIDROM KONUNGJAO SINGH VS.

STATE OF MANIPUR] and [d] 2008 [3] MLJ (Crl.) 144 [S.ANDAL VS. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, MADURAI DISTRICT, MADURAI AND ANOTHER].

4. Per contra, Mr.C.Emalias, the learned Additional Public Prosecutor would submit that the impugned detention order has been passed on cogent and sufficient materials and there is no illegality or infirmity in the impugned order of detention. However, he has not refuted the contention of the learned counsel for the petition that no bail application is filed in the adverse case by the detenu.

5. We have given our careful and anxious consideration to the rival submissions put forward by the learned counsel on either side and thoroughly scanned through the impugned detention order and the entire materials available on record.

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.419/2014] and in the two adverse cases [Cr.Nos.207/2013 and 418/2014] and he moved bail in the ground case (Crime No.419/2014) and in the first adverse case (Crime No.207/2013) and bail was granted in both cases but the detenu has not filed any bail application in the second adverse case (Crime No.418/2014) as on the date of passing of the detention order. When no bail

application is filed in the adverse case (Crime No.418/2014), there is no possibility of the detenu coming out on bail. Therefore, the subjective satisfaction arrived at by the detaining authority that the detenu would come out on bail 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, 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 2080. 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."

[d]In 2008 [3] MLJ (Crl.) 144 [S.ANDAL VS. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, MADURAI DISTRICT, MADURAI AND ANOTHER], it has been held as follows:

"Where a bail application filed by the detenu was pending before the Court and the Detaining Authority coming to the conclusion that there was a real possibility of the detenu coming out on bail, even prior to the passing of an order on bail application, held the detention order was passed without proper application of mind, rendering it vitiated."

8. In the light of the above said principles laid down by the Honourable Supreme Court and for the reasons stated above, the impugned order of detention is vitiated and the same is liable to be quashed.

9. In the result, this Habeas Corpus Petition is allowed. The impugned detention order 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 vsi To

1. The Secretary to Government, Home, Prohibition & Excise Department, (XVI) Government of Tamil Nadu,Fort St.George, Chennai 600009

2. The District Magistrate and District Collectort, Salem District, Salem.

3. The Superintendent Central Prison, Salem.

4. The Joint Secretary to Government, Public(Law & order) Fort St. George Chennai-9 5.The Public Prosecutor, High Court, Madras.

+ 1 cc to Mr.D. Veerasekaran, Advocate SR.11692 RV(CO) EU 06.04.2015 HCP.No.2564 of 2014