Allowed

Mani v. State of Tamil Nadu Rep by

Madras HC6 Aug 2014HCP/334/2014

Case brief

AI extract

What is this about?

The Madras High Court allowed a habeas corpus petition quashing a detention order passed under the Tamil Nadu Prevention of Dangerous Activities Act. The court held that the order was based on mere ipse dixit regarding bail prospects, as the detenue had no pending application and the cited bail case involved different accused.

What did the court decide?

Impugned detention order set aside and detenu directed to be released forthwith unless required for another case.

Mani Vs State of Tamil Nadu Rep by — Constitutional and Fundamental Rights | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 06.08.2014

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CORAM THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE P.N.PRAKASH

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H.C.P.No.334/2014

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Mani ...Petitioner

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Vs. 1.State of Tamil Nadu Rep. by The Secretary to Government, Home, Prohibition & Excise Department, Fort St. George, Chennai – 600 009. 2.The District Magistrate and District Collector, Salem District, Salem. ...Respondents

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Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus directing the respondents to produce the petitioner's father by name Govindan S/o Palani aged 55 years before this Court now confined in Central Prison, Salem set him at liberty and to call for the records pertaining to the order of detention passed in C.M.P.No.1/D.O/C2/2014 dated 04.01.2014 passed by the second respondent and set aside the same.

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Challenge is made to the order of detention passed by the second respondent vide Proceedings in C.M.P.No.1/D.O/C2/2014 dated 04.01.2014, whereby the father of the petitioner, viz., Govindan S/o Palani aged 55 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

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https://hcservices.ecourts.gov.in/hcservices/

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Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a “DRUG OFFENDER”.

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As per the grounds of detention dated 04.01.2014, passed by the second respondent, the detenue came to adverse notice in the following cases:

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i)Adverse Cases:-

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Sl Name of the Police Section of law No. station and Crime No. 1 Villupuram NIB CID 8(c) r/w 20(b)(ii)(A) of NDPS Cr.No.42/2013 dated of Act, 1985 offence 01.09.2013.

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ii)Ground Case: Sl Name of the Police Section of law No. station and Crime No. 1 Salem NIB CID Crime 8(c) r/w 20(a)(i) & 20(b)(ii) No.92/2013 (B) of NDPS Act, 1985

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Though many grounds have been raised in the petition, Mr.T.Muruganantham, 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.

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According to the learned counsel appearing for the petitioner, the detenue has been in remand in the ground case in Cr.No.92/2013 and the bail application filed by him in the ground case before the learned Special Judge for EC Act cases, Salem was dismissed on 01.10.2013. He would also contend that the detenu has not filed any further bail application in the ground case subsequent to its dismissal by the Court concerned and he is in remand in the said case. Further, the Detaining Authority has arrived at the subjective satisfaction that there is a real possibility of the detenu coming out on bail in the ground case by relying upon a similar case registered against Thiru.Thangavel in Crime No.178/2011 for offence under Sections 8(c) r/w 20(a)(i) of NDPS Act, 1985 wherein bail was granted by the learned Special Judge for EC Act cases, Salem in C.M.P.No.23/2012 on 27.01.2012. Though some of the offences are similar, 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 detenu has not moved any further bail application in the ground case subsequent to the dismissal of the earlier application and he is in remand in the said 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

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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].

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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.

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6.We have heard the learned counsel for both sides with regard to the facts and citation.

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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:

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" “4.I am aware that Thiru.Govindan is in remand in Salem, NIB CID Crime No.92/2013, for offences under Section 8(c) r/w 20(a)(i) & 20(b)(ii)(B) of NDPS Act and he filed a bail application before the Salem, Special Judge for EC Act cases which was dismissed on 01.10.2013. In similar cases registered at Salem NIB CID Crime No.178/2011, under Section 8(c) r/w 20(a)(i) of NDPS Act 1985, the bail was granted to the according to the accused Thiru. Thangavel by the Salem, Special Judge for EC Act cases in C.M.P.No.23/2013, on 27.01.2012. Hence, there is a real possibility of his (Thiru.Govindan) coming out on bail by filing a bail application for the above case before the Higher Court. If he comes out on bail, he will indulge in such further activities, which will be prejudicial to the maintenance of public order...........................”

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8.As could be seen from the above ground in the order of

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detention, the detenu is in remand in the ground case [Cr.No.92/2013] and the bail application filed by him in the said case before the learned Special Judge for EC Act Cases, Salem was dismissed on 01.10.2013 and he has not filed any further bail application in the ground case as on the date of passing of the detention order. 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 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. Further, the similar case referred to and relied upon by the Detaining Authority to infer that the detenu would be granted bail in the ground case, is not that of the co-accused. Hence, the order of detention cannot be sustained in the eye of law and the same is liable to be set aside.

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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.

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[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:

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"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."

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[b]In 2005 (1) CTC 577 (Velmurugan @ Velu vs. The Commissioner of Police), it has been held as follows:

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"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

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https://hcservices.ecourts.gov.in/hcservices/

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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."

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[c]In 2012 [7] SCC 181 [cited supra] which reads thus:-

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In Rekha v. State of Tamil Nadu through Secretary to Govt. & Anr., (2011) 5 SCC 244, this Court while dealing with the issue held :

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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 co-accused 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 coaccused 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……

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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

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https://hcservices.ecourts.gov.in/hcservices/

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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.”

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(emphasis supplied)

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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 co-accused in the same offence is enlarged on bail and on the basis of which the detenu could be enlarged on bail.

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14.In the instant case, admittedly, the said bail orders do not relate to the coaccused 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."

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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.

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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.

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Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order in C.M.P.No.1/D.O/C2/2014 dated 04.01.2014 passed by the second respondent is set aside. The detenu, viz., Govindan S/o Palani aged 55 years, is directed to be released

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https://hcservices.ecourts.gov.in/hcservices/

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forthwith unless his presence is required in connection with any other case.

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Sd/-
Asst. Registrar (CS-III)
//True Copy//
Sub Asst. Registrar.
jbm
To
1.The Secretary to Government,
Home, Prohibition & Excise Department,
Fort St. George,
Chennai – 600 009.
2.The District Magistrate and
District Collector,
Salem District, Salem.
3. The Superintendent,
Central Prison, Puzhal,
Chennai.
4. The Joint Secretary to Government,
Public (Law & Order) Department,
Fort St. George, Chennai - 9.
5.The Public Prosecutor,
High Court, Madras.
H.C.P.No.334/2014
SU[CO]
PSI 03/09/2014

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Mani v. State of Tamil Nadu Rep by

Case brief

What is this about?

What did the court decide?

Mani v. State of Tamil Nadu Rep by

Case brief

What is this about?

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