1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.11.2011 CORAM: THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU HABEAS CORPUS PETITION(MD).No.721 of 2011 Chellappa : Petitioner Vs. 1.The Commissioner of Police, Tirunelveli City. 2.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai 600 009. 3.The Inspector of Police, Thatchanallur Police Station, Tirunelveli City. : Respondents PRAYER: Petition is filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to produce the body of detenu namely Maya @ Rajkumar, aged about 24 years, S/o.Chellappa before this Court who is now detained in Central Prison, Palayamkottai in pursuant to the Detention Order passed by the first respondent in No.2/BDFGISSV/2011, dated 05.07.2011 to call for the records and quash the same and release the detenu at liberty forthwith. For Petitioner : Mr.N.Mohideen Basha For Respondents : Mr.A.Ramar Additional Public Prosecutor O R D E R [Order of the Court was made by S.NAGAMUTHU, J] The petitioner is the father of one Maya @ Rajkumar, aged about 24 years, S/o.Chellappa, who has been detained under Section 3(1) of the Tamil Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (in short "Tamil Nadu Act 14/1982), on the orders of the first respondent, by his proceedings in No.2/BDFGISSV/2011, dated 05.07.2011. Now, he has been lodged at Central Prison, Palayamkottai. 2. Though several grounds have been raised in this Habeas Corpus Petition, the learned counsel for the petitioner would submit that the impugned Order of Detention lacks application of mind on the part of the Detaining Authority, and therefore, according to the learned counsel, the impugned Detention Order is liable to be quashed. In order to substantiate his contention, the learned counsel would take us through the Detention Order, wherein the Detaining Authority has stated that the Bail Application filed by the detenu was pending before the District and Sessions Court, Tirunelveli. The said fact is not disputed. It is not the case of the Detaining Authority that the detenu had earlier been released https://hcservices.ecourts.gov.in/hcservices/ 2 on bail in similar cases. It is not also the finding of the Detaining Authority that in similar cases, the accused, who were similarly placed like that of the detenu, had been released on bail. It is not also the case of the Detaining Authority that in the very same Ground Case, any other accused was granted bail. The impugned Detention Order is silent as to whether there was an imminent possibility of the detenu being released on bail. In those circumstances, the learned counsel would submit that in the absence of any satisfaction on the part of the Detaining Authority that there was a real possibility of the detenu being released on bail, the Detention Order cannot be sustained. 3. The learned Additional Public Prosecutor is not in a position to dispute the above factual aspects. However, he would submit that it is the common knowledge that in similar cases, the accused are granted bail by the Courts. Therefore, according to him, there was an imminent possibility of the detenu being released on bail. 4. We have considered the above rival submissions. The law, on this aspect, is no more res integra. On several occasions, the question as to whether it is necessary for the Detaining Authority to record his satisfaction that there was an imminent possibility of the detenu being released on bail came up for consideration. More precisely, the said question was considered by the Hon'ble Supreme Court in Rekha v. State of Tamil Nadu reported in 2011 (3) MLJ (Crl) 422. In Paragraph Nos.24, 26 and 27 of the said Judgment, the Hon'ble Supreme Court has held as follows:- "24. 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. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed. 26. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. 27. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding https://hcservices.ecourts.gov.in/hcservices/ 3 its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal." 5. Applying the above principles stated in the said Judgment to the facts of the present case, if we analyze, in the instant case also, the Detaining Authority has not recorded his satisfaction that there was imminent possibility of the detenu being released on bail by the Court. Therefore, we hold that the Detaining Authority has passed the impugned Detention Order without application of mind. As has been held by the Hon'ble Supreme Court as well as this Court, since a detenu, under this Act, is detained without trial, the law is to be strictly interpreted and no allowance could be given to the Detaining Authority for the lapses committed by him. In such view of the matter, we are of the considered view that the impugned Detention Order cannot be sustained, and therefore, the impugned Detention Order is liable to be quashed. 6. In the result, this Habeas Corpus Petition is allowed and the impugned Detention Order, passed by the first respondent, in his proceedings in No.2/BDFGISSV/2011, dated 05.07.2011, is quashed. The detenu, by name, C.Maya @ Rajkumar, S/o.Chellappa, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case. SD/- Assistant Registrar (T&P) /True Copy/ Sub Assistant Registrar(CS) To 1.The Commissioner of Police, Tirunelveli City. 2.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai 600 009. 3.The Inspector of Police, Thatchanallur Police Station, Tirunelveli City. 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 5.The Superintendent, Central Prison, Palayamkottai +1cc to Mr.N.Mohideen Basha, Advocate, SR.No.42005 NB GH : 05.01.2012 : 3p/6c ORDER MADE IN HABEAS CORPUS PETITION(MD).No.721 of 2011 30.11.2011 https://hcservices.ecourts.gov.in/hcservices/