Allowed

Padmavathi v. the State of Tamil Nadu

Madras HC18 Aug 2014HCP/458/2014

Case brief

AI extract

What is this about?

The High Court allowed a habeas corpus petition and quashed a preventive detention order under Tamil Nadu Act 14 of 1982. The judicial review found the detention order illegal and void as the detaining authority failed to furnish cogent materials regarding the likelihood of bail release, relying instead on mere speculation and bail orders from unconnected similar cases.

What did the court decide?

Impugned detention order in Memo No.BDFGISSV/1688/2013 dated 23.11.2013 is set aside and the detenu is directed to be released forthwith.

Padmavathi Vs the State of Tamil Nadu — Pension and Retirement Benefits | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 18.08.2014

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CORAM

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

H.C.P.No.458/2014

Padmavathi

.. Petitioner

Vs.

1.The State of Tamil Nadu

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rep by the Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai 600 009.

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2.The Commissioner of Police Egmore, Chennai 600 008. .. Respondents

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Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the entire records from the 2nd respondent in connection with order Memo BDFGISSV/1688/2013 dated 23.11.2013 and quash the same and produce the petitioner's son Prabakaran S/o Kumar, aged about 23 years now detained in Central Prison, Puzhal, Chennai 600 066 under the Tamil Nadu Act 14 of 1982 before this Court and set him at liberty and quash the detention order.

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For Petitioner : Mr.P.K.Ilavarasan For Respondents : Mr.P.Govindarajan,APP

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ORDER [Order of the Court was made by S.RAJESWARAN, J.]

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Challenge is made to the order of detention passed by the second respondent vide Proceedings in Memo No.BDFGISSV/1688/2013 dated 23.11.2013, whereby the son of the petitioner by name Prabakaran, Son of Kumar, aged 23 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".

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

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As per the grounds of detention dated 23.11.2013, passed by the second respondent, the detenu came to adverse notice in the following cases:

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i)Adverse case:

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Sl Name of the Police station Section of law No. and Crime No. 1 T-9 Pattabiram Police 147, 294(b), 384, 506(i) Station Cr.No.1032/2013 IPC 2 T-11 Thirunindravur Police 294(b), 397, 506(ii) IPC Station Cr.No.1347/2013 3 T-11 Thirunindravur Police 147, 148, 302 IPC Station Cr.No.1351/2013 (ii) Ground Case: Sl Name of the Police station Section of law No. and Crime No. 1 T-11 Thirunindravur Police 147, 148, 294(b), 323, 336, Station, Cr.No.1356/2013 392, 397 and 506(ii) IPC

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3.Though many grounds have been raised in the petition, Mr.P.K.Ilavarasan, 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 detenu has been in remand in the 2nd adverse case [Cr.No.1347/2013], 3rd adverse case [Cr.No.1351/2013] and also in the ground case in Cr.No.1356/2013 registered by T-11 Thirunindravur Police Station and he filed bail applications in the said cases before the learned Principal District Sessions Judge, Thiruvallur, in Cr.MP.Nos.3339, 3337 and 3338/2013 respectively and the same were said to have been pending as on the date of the passing of the detention order. Further, the Detaining Authority has arrived at the subjective satisfaction that there is very likely of the detenu coming out on bail in the ground case, 2nd adverse case and 3rd adverse case by relying upon the similar case registered by T-1 Ambattur Police Station Cr.No.464/2011 u/s.341, 294(b), 336, 427, 392, 397 and 506(ii) IPC, wherein bail was granted to the accused by the learned Principal Sessions Judge, Thiruvallur, in Crl.MP.No.712/2012. The learned counsel would add that admittedly, in this case, the bail application filed by the detenu in the ground case, 2nd adverse case and 3rd adverse case are pending and he is in remand in the said case. When a bail application is pending, there is no presumption that the detenu would be granted 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, 2nd adverse case and 3rd adverse case. He adds that the Detaining Authority though relied on the similar case particulars, he

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

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has furnished only the bail order of the said similar case in the Booklet and has not furnished the other relevant particulars. Therefore, there is no imminent possibility of the detenu coming out on bail on the basis of the bail granted in the similar 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 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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"5.I am aware that Thiru Prabakaran is in remand in T.11 Thirunindravur Police Station Crime Nos.1347/2013, 1351/2013 and 1356/2013 and he has not moved a bail application for T.11 Thirunindravur Police Station Crime Nos.1347/2013, 1351/2013 and 1356/2013 so far before the Court of Principal District Sessions Judge, Thiruvallur, in Crl.M.P.Nos.3339/2013, 3337/2013 and 3338/2013 respectively and the same were pending. Similarly, in a case registered at R-7 K.K.Nagar Police Station Crime No.301/2009 under Sections 147, 148, 341, 302 and 506(ii) IPC bail was granted in Crl.O.P.No.13843/2009 by the Hon'ble High Court, Madras. It is pertinent to note that in a similar case registered at T-1 Ambattur Police Station Cr.No.464/2012 under Sections 341, 294(b), 336, 427, 392, 397 and 506 (ii) IPC bail was granted by the Court of Principal Sessions Judge at Thiruvallur in Crl.M.P.No.712/2012. Hence, I infer that it is

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

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very likely of his coming out on bail in T.11 Thirunindravur Police Station Crime Nos.1347/2013, 1351/2013 and 1356/2013 since in similarly placed cases bails are granted by courts after a lapse of time. If he comes out on bail, he will indulge in 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 detention, the detenu is in remand in the 2nd adverse case [Cr.No.1347/2013], 3rd adverse case [Cr.No.1351/2013] and also in the ground case in Cr.No.1356/2013 registered by T-11 Thirunindravur Police Station and he filed bail applications in the said cases before the learned Principal District Sessions Judge, Thiruvallur, in Cr.MP.Nos.3339, 3337 and 3338/2013 respectively and the same were said to have been pending as on the date of the passing of the detention order. When a bail application is pending, there is no presumption that the detenu would come out on bail. Therefore, the subjective satisfaction arrived at by the detaining authority that there is every likelihood of his coming out on bail in the ground case, 2nd adverse case and 3rd adverse 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. The Detaining Authority has relied on the similar case to infer that the detenu would be granted bail in the ground case, 2nd adverse case and 3rd adverse case; but as evidenced from the Booklet, the Detaining Authority has not furnished the particulars of the similar case in full excepting furnishing only the copy of the Bail order of the said similar case. This would deprive of the detenu from making an effective representation. Therefore, the impugned order is passed on mere Ipse-dixit and the order of detention cannot be sustained in the eye of law.

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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

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

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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 Commisioner ofPolice), 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 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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“……

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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 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

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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 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) 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.

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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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[d]In the judgment reported in 2013 [1] LW (Crl.) 460 [CITED SUPRA], the Division bench of this Court at Madurai has held as follows:-

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4.In this regard, the learned counsel for the petitioner would rely on the Judgment of a Division Bench of this Court in Jother vs. The Secretary to Government, reported in 2012 (2) LW (Crl.) 527, wherein, in identical circumstances, in Paragraph No.17, the Division Bench has held as follows:

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"17.Further, unless, the similar cases referred to by the Detaining Authority, in the grounds of detention, are comparable with the cases relating to the detenu, in all aspects, it would not be open to the Detaining Authority to arrive at his conclusion that the detenu would be enlarged on bail. In the present case, It has not been shown that all the relevant materials relating to the similar cases, referred to by the Detaining Authority had been furnished to the detenu, in order to enable him to make an effective representation against the detention order. The failure of the Detaining Authority to furnish all the materials would, no doubt, cause substantial prejudice to the detenu, resulting in the failure on the part of the Detaining Authority in following the mandate, enshrined in Clause(5) of the Article 22 of the Constitution of India."

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5.Relying on the above Judgment of the Division Bench, the learned counsel would submit that in the case on hand also, since the materials relating to the similar case have not been furnished to the detenu except bail order copy alone and since the satisfaction arrived at by the Detaining Authority is not based on any relevant materials, the Detention Order is liable to be set aside.

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7.Keeping in view the above legal principles, if we look into the facts involved in the case, there can be no dispute that the detaining authority had come to the conclusion that there is real possibility of the accused coming out on bail and the said conclusion is based on the fact that in a similar case in Woraiyur P.S.Cr.No.989/2010, bail was granted to the accused therein. But, it is the contention of the petitioner that relevant documents relating to the said case, such as FIR, Mahazar, etc., have not been furnished. To the contrary, only copy of the bail order has been given. In our considered opinion, non-furnishing of all these material documents to the detaining authority and non-consideration of the same would only indicate the total non-application of mind on the part of the detaining authority. The detaining authority in a mechanical fashion only on considering the bail order has come to the conclusion that there is a real possibility of the detenu coming out on bail."

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

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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 Memo No.BDFGISSV/1688/2013 dated 23.11.2013 passed by the second respondent is set aside. The detenu, viz., Prabakaran, Son of Kumar, aged 23 years, is directed to be released forthwith unless his presence is required in connection with any other case.

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Sd/Assistant Registrar Dated: 9.09.2014 //True Copy// Sub Assistant Registrar To 1.The Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai 600 009. 2.The Commissioner of Police Egmore, Chennai 600 008. 3.The Public Prosecutor, High Court, Madras. 4.The Superintendent, Central Prison, Puzhal, Chennai. 5.The Joint Secretary to Government, Public (Law & Order) Fort St.George, Chennai. rsi(co) krd 11/9

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H.C.P.No.458/2014

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Padmavathi v. the State of Tamil Nadu

Case brief

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Padmavathi v. the State of Tamil Nadu

Case brief

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