1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.07.2011 CORAM: THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA AND THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN HCP(MD)No.365/2011 Venkateswari : Petitioner Vs 1.The Secretary to Government Home, Prohibition and Excise(IX)Department Secretariat, Chennai-9 2.The District Collector and District Magistrate Virudhunagar District 3.The Superintendent of Prison, Madurai Central Prison Madurai District : Respondents Prayer:- This Habeas Corpus Petition is filed to issue a Writ of Habeas Corpus to call for records from the 2nd respondent in Cr.MP.No.09/2011 (Goonda) dated 29.03.2011, to set aside the same, to produce the detenu Babu @ Babu Prasad, aged about 34 years, S/o.Arumugam, now detained in the Central Prison, Madurai before this court and to set him at liberty forthwith. For Petitioner : Mr.R.Alagumani For Respondents : Mr.P.Jyothi, APP ORDER (Order of the Court was made by ARUNA JAGADEESAN J.) The petitioner is the wife of the detenu. The petitioner has come forward with this Habeas Corpus Petition, seeking for the relief of quashing the impugned detention order dated 29.03.2011, slapped on her husband as “Goonda” as contemplated under 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). 2. Mr.R.Alagumani, the learned counsel for the petitioner would mainly contend that the impugned order of detention was passed even without mentioning that there is “imminent possibility” or “real possibility” or “very likely” or “most likely” for the detenu to come out on bail. It is contended by the learned counsel for the petitioner that without any subjective satisfaction and without any cogent material that the detenu is likely to be released on bail, the impugned detention order was passed and hence, the same is vitiated. https://hcservices.ecourts.gov.in/hcservices/ 2 3. Per contra, Mr.P.Jyothi, the learned Additional Public Prosecutor would submit that there is no illegality or infirmity in the impugned order of detention. It is contended that the detaining authority has observed that since the bail petition filed by the detenu in Cr.MP.No.1388/2011 is pending before the Judicial Magistrate, Aruppukottai, there is possibility of the detenu getting bail and that if he is let to remain at large, he would further indulge in such activities in future, which will be prejudicial to the maintenance of the public order and hence, there is a compelling necessity to detain the detenu in order to prevent him from indulging in such activities, which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14 of 1982 and as such, the detaining authority has rightly passed the detention order. 4. The perusal of the impugned order of detention would reveal that there is absolutely no specific mentioning to the effect that there is “imminent possibility” or “real possibility” or “very likely” or “most likely” for the detenu to come out on bail. It is also relevant to note that the detaining authority has stated in paragraph No.5 of the impugned detention order as hereunder:- “I am also aware that in the ground case against him, on 25.03.2011, he had filed a bail application in the Court of Judicial Magistrate, Aruppukkottai vide Cr.MP.No.1388/ 2011 and it is pending trial. If he is let to remain at large, he will further indulge in such activities in future, which will be prejudicial to the maintenance of public order. Further, the recourse to normal criminal law will not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of public order. From the above materials, I am satisfied that there is a compelling necessity to detain him in order to prevent him from indulging in such activities.” 5. The above finding of the detaining authority is based on mere surmises and conjectures. Admittedly, the bail application filed by the detenu is pending and no order has been passed on the said bail application. But, the detaining authority without any cogent material available on record has arrived at the conclusion that the detenu may be released on bail and that if he is let to remain at large, he will further indulge in such activities, which are prejudicial to the maintenance of public order. In the absence of any materials on record, on the basis of which, the detaining authority could be satisfied that the detenu was likely to be released on bail, the mere ipse-dixit of the detaining authority is not sufficient to sustain the order of detention. 6. At this juncture, it is relevant to refer the decision of the Hon'ble Apex Court in T.V.Saravanan alias S.A.R.Prasanna Venkatachariar Chaturvedi v. State, through Secretary and Another reported in 2006 (1) MLJ (Crl) 539. The Hon'ble Apex court in the said decision held as hereunder: “The Courts had rejected the bail applications moved by the appellant and there was no material whatsoever to https://hcservices.ecourts.gov.in/hcservices/ 3 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.” 7. In yet another decision of the Honourable Supreme Court reported in Ramesh Yadav Vs. District Magistrate, Etah and others (AIR-1986-SC-315), the Honourable Supreme Court has observed as follows:- “Where the order of detention was passed because the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area, the same was not proper. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail, an order of detention under the Act should not ordinarily be passed.” 8. The principles laid down in the decisions cited supra are squarely applicable to the facts of the present case. In this case also, the detaining authority in the absence of any cogent material available on record has inferred that the detenu would be released on bail and if he is released on bail, he would indulge in such activities in future, which are prejudicial to the maintenance of public order. There must be cogent material before passing the detention order that the detenu is likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse-dixit of the officer passing the order of detention. Likelihood of detenu's moving an application for bail application or the pendency of the bail application filed by the detenu is not a cogent material and detention order based on such material is liable to be quashed. The detaining authority before passing the detention order must satisfy themselves that there is likelihood of the detenu being released on bail and that satisfaction ought to be reached on cogent material. In the light of the above said principles laid down by the Honourable Supreme Court and the observations, 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 and the impugned detention order passed by the 2nd respondent in Cr.MP.No.09/2011 (Goonda) dated 29.03.2011 is hereby quashed and the https://hcservices.ecourts.gov.in/hcservices/ 4 detenu Babu @ Babu Prasad is set at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Assistant Registrar(CO) /TRUE COPY/ Sub Assistant Registrar To: 1.The Secretary to Government, Home, Prohibition and Excise(IX)Department, Secretariat, Chennai-9 2.The District Collector and District Magistrate Virudhunagar District 3.The Superintendent of Prison, Madurai Central Prison Madurai District 4.The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai – 9. 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai HCP(MD)No.365/2011 26.07.2011 Srcm PA/04.08.2011/4P/6C https://hcservices.ecourts.gov.in/hcservices/