Allowed

Mrs.Baghyam v. the District Collector Cum

Madras HC14 Aug 2014HCP/588/2014

Case brief

AI extract

What is this about?

Habeas corpus petition filed challenging a detention order passed under TN Act 14 of 1982. The Court held that since the detenu had not filed a bail application and no co-accused was on bail, the authority's finding of 'imminent possibility' of bail was mere ipse dixit without application of mind, rendering the order invalid.

What did the court decide?

Impugned detention order set aside; detenu directed to be released forthwith unless presence required in other cases.

Mrs.Baghyam Vs the District Collector Cum — Constitutional and Fundamental Rights | Madras HC (2014)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED : 14.08.2014

¶3

CORAM THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE P.N.PRAKASH H.C.P.No.588/2014 Baghyam .. Petitioner Vs 1.The District Collector cum District Magistrate Dharmapuri Dharmapuri District. 2.The Secretary to Government Home, Prohibition & Excise Department Secretariat Fort St.George Chennai 600 009. .. Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records pertaining to the order of the 1st respondent dated 30.12.2013 in S.C.No.33/2013 detaining the detenu Prabu (alias) Gowtham S/o Srinivasan as Goonda under Tamil Nadu Act 14/1982 and set aside the same and direct the respondents to produce the said detenue now detained in the Central Prison, Dharmapuri before this Court and set him at liberty.

¶4

Challenge is made to the order of detention passed by the first respondent vide Proceedings in S.C.No.33/2013 dated 30.12.2013, whereby the son of the petitioner by name Prabu @ Gowtham, aged 24 years, S/o Seenivasan, was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders,

¶5

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

¶6

Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "GOONDA".

¶7

As per the grounds of detention dated 30.12.2013, passed by the first respondent, the detenu came to adverse notice in the following case:

¶8

Ground Case:

¶9

Sl	Name of the Police station	Section of law
No.	and Crime No.
1	Papireddipatti Police	376 and 397 IPC
	Station Cr.No.532/2013

¶10

3.Though many grounds have been raised in the petition, Mr.R.Srinivas, 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.

¶11

According to the learned counsel appearing for the petitioner, the detenu has been in remand in the ground case in Cr.No.532/2013 registered by Papireddipatti Police Station and the detenu has not moved any bail application in the ground case as on the date of the passing of the detention order. The learned counsel would add that admittedly, in this case, the detenu has not moved any bail application in the ground 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 and there is no 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] .

¶12

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.

¶13

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

¶14

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

¶15

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 5, on which much reliance has been placed by the learned counsel appearing for the petitioner:

¶16

"5.I am aware that Thiru Prabu @ Gowtham has not filed any bail petition so far in connection with Pappireddipatty Police Station Cr.No.532/2013 under Section 376, 397 IPC. I am also aware that in a similar case registered against one Silambarasan, S/o Jeyabalan, Veeran Kovil Street, Vikravandi, Villupuram District in Vikravandi Police Station Cr.No.364/2012 under Section 365, 397, 379 and 376 Indian Penal Code bail was granted by the Principal Sessions Court, Villupuram in Criminal Miscellaneous Petition No.5233/2012 dated 04.06.2012. Hence I infer that it is very likely of his (Thiru Prabu @ Gowtham) coming out on bail by filing bail application for the above case also since bails are granted by the concerned court or higher courts in such similar cases as stated above. If he comes out on bail he will indulge in such further activities, which will be prejudicial to the maintenance of public order and committing crimes against women, against the properties and their lives. Further, the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of the public order and committing crimes against women, against the properties and lives of the public................"

¶17

8.As could be seen from the above ground in the order of detention, the detenu is in remand in the ground case [Cr.No.532/2013] and he has not filed any bail application in the said 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. Therefore on this ground also the impugned order is liable to be set aside. Hence,

¶18

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

¶19

the order of detention cannot be sustained in the eye of law and the same is liable to be set aside.

¶20

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.

¶21

[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:

¶22

"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."

¶23

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

¶24

"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

¶25

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

¶26

detention is vitiated."

¶27

[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 :

¶28

“........ A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored……

¶29

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.”

¶30

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."

¶31

(emphasis supplied)

¶32

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.

¶33

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.

¶34

Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order in S.C.No.33/2013 dated 30.12.2013 passed

¶35

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

¶36

by the first respondent is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.

¶37

Sd/-
Asst.Registrar (AD I)
/true copy/
Sub Asst. Registrar
gms
To
1.The Secretary to Government
Home, Prohibition & Excise Department
Secretariat
Fort St.George
Chennai 600 009.
2.The District Collector cum District Magistrate
Dharmapuri
Dharmapuri District.
3. The Joint Secretary to Government
(Law and order) Secretariat
Chennai-9
4. The Superintendent
Central Prison
Dharmapuri
5.The Public Prosecutor,
High Court, Madras.
6. the Superintendent
Central Prison,
Salem
H.C.P.No.588/2014
MG (CO)
kk 9/9

¶38

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

Mrs.Baghyam v. the District Collector Cum

Case brief

What is this about?

What did the court decide?

Mrs.Baghyam v. the District Collector Cum

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt.Rathna Vs the Superintendent of Police

Ibrahim Vs the Inspector of Police

Arif Vs the Inspector of Police

Kalyanasundaram Vs the Inspector of Police

Mrs.Ramani Vs the Inspector Ofp Olice

Sumathi Vs the State of Tamil Nadu