1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.06.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI H.C.P.(MD) No.275 of 2011 Anguchamy .. Petitioner Vs. 1.The Commissioner of Police, Madurai City, Madurai. 2.State of Tamil Nadu, Rep.by its Secretary to Government, Government of Tamil Nadu, Prohibition and Excise Department, Chennai – 9. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the records pertaining to the proceedings of the 1st respondent made in his proceedings in No.47/BDFGISSV/2010 dated 07.07.2010 and quash the same and set the petitioner's son by name Irulandi son of Anguchamy aged about 20 years at liberty from Central Prison, Madurai. For petitioner : Mr.M.Jegadeesh Pandian For respondents : Mr.P.Jothi, Addl.Public Prosecutor ORDER (Order of the Court was made by G.M.AKBAR ALI,J.) The petitioner is the father of the detenu, namely, Irulandi, who was detained by order dated 07.07.2010 in No.47/BDFGISSV/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”. 2.Mr.M.Jegadeeshpandian, learned counsel appearing for the petitioner raised the following grounds challenging the order of detention as vitiated. In Paragraph No.5 of the detention order, the detaining authority has observed that "I am also aware that he has not filed any bail application in the said ground case and adverse cases so far. However, I am also through the statement of Tmt.Velmayil mother of Thiru.Irulandi that he is making efforts to file bail applications in the ground aware that there is real possibility of his coming out on bail by filing bail applications in the https://hcservices.ecourts.gov.in/hcservices/ 2 ground case and adverse cases .....". The observation made by the detaining authority that there is a real possibility of the detenu coming out on bail by filing 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]. 3.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. 4.We have carefully considered the rival submissions and also the records. 5.In order to appreciate the submissions made by the learned counsel appearing for the petitioner, we deal with the ground. 6.In Paragraph No.5 of the detention order, the detaining authority has stated that there is no bail application filed by the detenu. Therefore, there is a real possibility of his coming out on bail by filing 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:- "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." 7.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 https://hcservices.ecourts.gov.in/hcservices/ 3 order is vitiated and the mere ipse dixit of the detaining is not sufficient to sustain the order of detention. 8.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:- "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 circumstances, the order has got to be set aside." 9.In the present case also, there were two adverse cases in which the detenu was arrested and he was also arrested in the ground case. The detention order was passed on 07.07.2010 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. 10.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. 11.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:- "10. In our considered view, the law laid down in 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." The principle laid down in this case is squarely applicable to the facts of the present case. https://hcservices.ecourts.gov.in/hcservices/ 4 12.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 No.47/BDFGISSV/2010 dated 07.07.2010 passed by the 1st 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. Sd ASST REGISTRAR ( P AND A ) /TRUE COPY/ SUB ASST REGISTRAR nbj To 1.The Secretary to Government, Government of Tamil Nadu, Prohibition and Excise Department, Chennai – 9. 2.The Commissioner of Police, Madurai City,Madurai. 3.The Superintendent of Borstal School, Pudukkottai. 4.The Joint Secretary to Government of Tamil Nadu, Public (Law and Order) Department, Fort, St. George, Chennai. 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. DM:2011:JULY:19:: H.C.P.(MD)No.275 of 2011 24.06.2011 4P:6C:: https://hcservices.ecourts.gov.in/hcservices/