Allowed

Mariappan v. Secretary to Government

Madras HC11 Mar 2011HCP(MD)/36/2011

Case brief

AI extract

What is this about?

Petitioner filed a writ petition under Article 226 challenging a detention order against his son under the Tamil Nadu Prevention of Dangerous Activities Act. The High Court held the order was vitiated due to lack of material regarding bail possibility, failure to supply the remand order, and non-consideration of other adverse cases, and allowed the petition quashing the detention.

What did the court decide?

Detention order in Cr.M.P.No.33/2010 dated 20.10.2010 is set aside; Habeas Corpus Petition allowed; detenu directed to be released forthwith unless presence required for another case.

Mariappan Vs Secretary to Government — Pension and Retirement Benefits | Madras HC (2011)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.03.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN

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and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI H.C.P.(MD) No.36 of 2011

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Mariappan .. Petitioner

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vs.

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1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

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2.The District Magistrate and District Collector, Virudhunagar Distirct.

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3.The Superintendent of Prison, Madurai Central Prison, Madurai. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the entire records connected with the detention order of the 2^nd respondent in Cr.M.P.No.33/2010 dated 20.10.2010 and quash the same and direct the respondents to produce the body and person of the petitioner's son by name Lenin son of Mariappan, aged about 25 years detained in Madurai Central Prison before this Court and set him at liberty forthwith.

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For petitioner : Mr.R.Alagumani

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For respondents : Mr.M.Daniel Manoharan, Addl.Public Prosecutor

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ORDER

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(Order of the Court was made by G.M.AKBAR ALI, J)

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The petitioner is the father of the detenu, namely, Lenin, who was detained by order dated 20.10.2010 in Cr.M.P.No.33 of 2010 [Goonda] under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Boot-Leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding the detenu as a “Goonda”.

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Mr.R.Alagumani, learned counsel appearing for the petitioner raised the following three grounds challenging the order of detention as vitiated:-

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(i) Firstly, in Paragraph No.5 of the detention order, the detaining authority has observed that "I am aware that Thiru. Lenin, has been remanded to Judicial Custody upto 28.10.2010 and lodged in District Jail, https://hcservices.ecourts.gov.in/hcservices/ Virudhunagar in connection with Rajapalayam North Police Station Cr.No.924/2010. In the adverse case in Cr.NO.83/10 Thiru.Lenin obtained

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bail and in Cr.No.861/10 obtained anticipatory bail. Also in the ground case, the bail application filed by Thiru. Lenin was dismissed. Therefore, there is a real possibility of his coming out on bail by filing another bail application in the concerned court or higher court....". The observation made by the detaining authority that there is a real possibility of the detenu coming out on bail by filing another bail application is merely the 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 detenue 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. In support of his contention, the learned counsel relied on the judgments in Narcotic Control Bureau Vs. Raju Alias Natarajan [(2006) 9 Supreme Court Cases 711]; and, Muthukumar and others vs. State of Tamil Nadu [(2009) 3 MLJ (Crl) 778];

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(ii) Secondly, the detenu was arrested and remanded on 14.10.2010 but a copy of the remand order was not supplied to the detenu, which vitiates the order of detention. The learned counsel for the petitioner relied on the judgment in Karuppalagu vs. The State of Tamil Nadu [(2004) MLJ (Crl) 945].

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(iii) Thirdly, the accused was involved in four adverse cases. The detenu was arrested on 14.10.2010 in two adverse cases viz., 83/2010 and 861/2010 and also in the ground case, viz., Crime No.924/2010. The detaining authority has observed in the detention order that the detenu has obtained bail in Cr.No.83/10 and anticipatory bail in Cr.No.861/10 and the bail application filed in the ground case was dismissed but he has not applied his mind to the real possibility of the detenu's coming out on bail in the other two adverse cases viz, Crime No.393/10 and 860/10. He has observed that there is possibility of the detenu coming out on bail in the ground case alone, which was already dismissed, by filing another bail application in the concerned court or higher court. Such observation shows the non-application of mind as well as lack of awareness on the part of the detaining authority. In support of his contention, the learned counsel relied on the judgment in R.Albert vs. State of Tamil Nadu [(2007) 1 MLJ (Crl) 996.

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Per contra, learned Additional Public Prosecutor would submit that the detaining authority has considered the dismissal of the bail application of the detenu in the ground case and therefore formed an opinion that there is a real possibility of the detenu coming out on bail by filing another bail application and therefore, the detaining authority has applied his mind and also referred the cogent material and passed the order. As far as the second ground is concerned, the learned Additional Public Prosecutor would submit that though the remand order was not supplied, a copy of the remand warrant has been supplied to the detenu based on which the detention order was passed. Regarding the third ground, the learned Additional Public Prosecutor would submit that the detenu has not filed any bail application in the two adverse cases but has filed the bail application in the ground case which has been considered by the https://hcservices.ecourts.gov.in/hcservices/ detaining authority for the real possibility of the detenu coming out on bail, and the judgment referred is not applicable to the facts of this case, according to him.

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We have carefully considered the rival submissions and also the records.

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In order to appreciate the submissions made by the learned counsel appearing for the petitioner, we deal with the grounds one by one.

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As far as the ground No.1 is concerned, in Paragraph No.5 of the detention order, the detaining authority has stated that in the ground case, the bail application filed by the detenu was dismissed. Therefore, there is a real possibility of his coming out on bail by filing another bail application in the concerned court or higher court. This aspect has been dealt in Narcotic Control Bureau Vs. Raju Alias Natarajan [(2006) 9 Supreme Court Cases 711] wherein the Hon'ble Supreme Court has observed as follows:-

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"4. In similar circumstances, this Court in T.V.Saravanan v. State [(2006) 2 SCC 664] directed the release of the detenu. Counsel for the State is unable to distinguish that judgment. This Court in T.V.Saravanan has held that the "imminent possibility" of the appellant coming out on bail is merely the 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 would 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."

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It is well settled that if there is 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 detention order is vitiated and the mere ipse dixit of the detaining is not sufficient to sustain the order of detention.

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Similarly, in Muthukumar and others vs. State of Tamil Nadu [(2009) 3 MLJ (Crl) 778], a Division Bench of this Court has held as follows:-

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"7. Equally, there were two adverse cases and one ground case. There was a bail application filed in the first adverse case on 24.10.2008 and the same was dismissed on 5.11.2008. As far as the second adverse case and ground case are concerned, admittedly bail applications were not filed. It is pertinent to point out that even the dismissal order was passed only in the first adverse case on 5.11.2008. It remains to be stated that when the order under challenge came to be passed on 8.11.2008 within a short span of 3 days and that too while no bail application was pending in the other two cases, the observation made by the authority that there is a real possibility of the detenu coming out on bail was not only without any basis, but also an apprehension in the mind of the authority. It can even be commented as unwarranted. Under the https://hcservices.ecourts.gov.in/hcservices/ circumstances, the order has got to be set aside."

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In the above said decision also, there was two adverse cases and a ground case and the detenu has filed bail application in the first adverse case on 24.10.2008 and the same was dismissed on 5.11.2008. The detention order was passed on 8.11.2008 within three days, that too, while no bail application was pending in other two cases.

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In the present case also, there were two adverse cases in which the detenu was arrested on 14.10.2010 and he was also arrested in the ground case. The bail application filed in the ground case was dismissed on 18.10.2010. The detention order was passed within 2 days i.e. on 20.10.2010 and there was no bail application pending in other two cases and it reveals the non-application of mind on the part of the detaining authority and there was also no cogent material available to the conclusion that there was an imminent possibility or real possibility of the detenu coming out on bail.

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Again, it is well settled that the detenu has got to be furnished of the relevant documents on which the detention order has been passed. In Karuppalagu vs. The State of Tamil Nadu [(2004) MLJ (Crl) 945], non-supply of remand order was considered by a Division Bench of this Court and the Court has held in Paragraph No.3 as follows:-

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"3. Even at the outset, learned counsel for the petitioner, by drawing our attention to the reference made in paragraph 6 of the grounds of detention, would contend that in the absence of supply of copy of the remand order, the ultimate order passed by the detaining authority cannot be sustained. On the other hand, learned Government Advocate appearing for the respondents submitted that though the copy of the remand order was not furnished to the detenu, copy of the remand warrant was furnished to him and hence, no prejudice is caused to him due to non-supply of the remand order. He also contended that the same was not relied on by the detaining authority."

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Learned Additional Public Prosecutor would submit that the remand warrant has been supplied to him. Further, the Division Bench has also considered the same aspect in Paragraph No.4 also.

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"4. We have considered the rival submissions. With reference to the contentions raised by the learned counsel for the petitioner, we have verified paragraph 6 in the grounds of detention. It is clear that the detaining authority was very well aware that the detenu was in remand and lodged at Central Prison, Palayamkottai, at the time of passing of the detention order. Having said so, as rightly argued by the learned counsel for the petitioner, the detaining authority ought to have obtained the remand order and supplied copy of the same to the petitioner in order to make effective representation. Though copy of the remand warrant was supplied to the detenu, as rightly argued, it does not contain the statement of the accused said to have been made by him before the learned Magistrate at the time of passing of the order. ..."

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This decision squarely applies to the facts and circumstances of the case https://hcservices.ecourts.gov.in/hcservices/ before us.

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Now, coming to the other ground raised by the learned counsel for the petitioner, non-application of mind and also lack of awareness of the detaining authority about the non-consideration of no bail application in other two adverse cases, we are of the view that the detaining authority ought to have considered that there is a real possibility of the detenu coming out on bail in other two adverse cases.

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In R.Albert vs. State of Tamil Nadu [(2007) 1 MLJ (Crl) 996], a Division Bench of this Court has observed in Paragraph No.10 as follows:-

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"10. In our considered view, the law laid down in

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the above decision squarely applies to the facts of this case. It is pertinent to point out that no 'satisfaction' is recorded any where in the grounds of detention that the detenu was likely to be released on bail in respect of the above said four adverse cases. The said non-consideration of the detaining authority coupled with the total lack of awareness on his part about the custody of the detenu in respect of the above said four adverse cases vitiates the order of detention."

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The principle laid down in this case is squarely applicable to the facts of the present case.

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For the aforesaid reasons, we are of the view that detention order is vitiated and the same is liable to be set aside. Accordingly, the detention order in Cr.M.P.No.33/2010 dated 20.10.2010 passed by the second respondent is set aside and the Habeas Corpus Petition is allowed. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.

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Sd/-

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Assistant Registrar(P & A)

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/True copy/

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Sub Assistant Registrar(CS)

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