1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:16.08.2011 CORAM: THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA AND THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN HCP(MD)No.408/2011 A.Kodeeswari :Petitioner -Vs- State of Tamilnadu rep. by 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-9. 2.The District Magistrate and District Collector, 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.11/2011 (Goonda)dated 25.05.2011, and quash the same and direct the Respondents to produce the detenu Alagar, aged about 34 years, S/o.Nalachakkaravarthi, 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 25.05.2011, 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 challenged the detention order on three main grounds, viz. (i) 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 and 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, (ii) due to non-supply of a copy of the remand order to the detenu, he was prevented from making an effective representation and hence, it vitiates the detention, for which, the learned counsel relied on the decision of the Division Bench of this court reported 2004-MLJ-Crl-945 (Karuppalagu Vs. The State of Tamil Nadu by Secretary to Government Prohibition and Excise Department, Chennai and another) and (iii) non-supply of bail application has affected the constitutional right of making an effective and purposeful representation to the authorities concerned, thereby vitiating the detention. 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 though a copy of the remand order was not furnished to the detenu, a copy of the remand of warrant was furnished to him and hence, no prejudice is caused to him due to non furnishing of the copy of the remand order. 4.It is further contended by the learned Additional Public Prosecutor that the detaining authority has observed that since the bail petition filed by the detenu in Cr.MP.No.1316/2011 in the ground case in Cr.No.405/2011 of Rajapalayam North Police Station is pending before the District Sessions Court, Srivilliputtur, 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. 5.We have given our careful and anxious consideration to the rival submissions put forward by the learned counsel on either side and thoroughly scanned through the impugned detention order and the entire materials available on record. 6.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. Admittedly, the 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. 7.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 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 https://hcservices.ecourts.gov.in/hcservices/ 3 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.” 8.In Abdul Sathar Ibrahim Mani Vs. Union of India (AIR-1991-SC-2261), it is held as follows:- “Where the detenu was in custody at the time of passing an order of detention what is strictly required is whether the detaining authority was aware of the fact that the detenu was in custody, and if so was there any material to show that there were compelling reasons to order detention in spite of his being in custody.These aspects assume importance because of the fact that a person who is already in custody is disabled from indulging in any prejudicial activities and as such the detention order may not normally be necessary. Therefore, the law requires that these two tests have to be satisfied in the case of such detention of a person in custody.” 9.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.” 10.In Chelladurai Vs. State of Tamil Nadu (2009-3-MLJ-Crl-790-Mad) this court has observed that there is no material on record to come to a definite conclusion that there is real possibility of detenu coming out on bail by filing bail application and the conclusion of the detaining authority is not based on any material and shows non application of mind. In yet another decision of this court rendered in the case of D.Sivasakthi Vs. District Collector and District Magistrate (2009-3-MLJ-Crl-836-Mad), the same view was expressed and the detention was quashed on the said ground. In S.Andal Vs. The District Collector and District Magistrate, Madurai and another (2008-3-MLJ-Crl-144), the Madurai Bench of Madras High Court held that where a bail application filed by the detenu was pending before the court and the detaining authority came to the conclusion that there was a real possibility of the detenu coming out on bail, even prior to the passing of an order on bail application, it should be held that the detention order was passed without proper application of mind, rendering it vitiated. 11.The principles laid down in the decisions cited supra are squarely applicable to the facts of the present case. In this case also, the https://hcservices.ecourts.gov.in/hcservices/ 4 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. 12.In so far as the contention raised by the learned counsel for the petitioner as regards the non-supply of a copy of the remand order to the detenu is concerned, on a perusal of the paragraph No.5 of the impugned detention order, it is clear that the detaining authority was well aware that the detenu was in remand and detained at Central Prison, Madurai in connection with Cr.No.405/2011 of Rajapalayam North Police Station. Having said so and as rightly contended by the learned counsel for the petitioner, the detaining authority ought to have obtained the remand order and furnished a copy of the same to the detenu in order to enable him to make an effective representation. 13.At this juncture, it is pertinent to point out that the detenu has sought for a copy of the remand order in his representation dated 28.5.2011 made to the 2nd respondent herein and also another representation dated 29.5.2011 to the 1st respondent herein. The 1st respondent by his letter dated 15.6.2011 has informed the detenu that he could get those records from the Inspector of Police concerned by making a request in that regard. It is seen that though a copy of the remand of warrant was furnished to the detenu, but the booklet furnished to the detenu does not contain the remand order. As rightly pointed out by the learned counsel for the petitioner, if a copy of the remand order was furnished to the detenu, it would contain the statement of the detenu said to have been made by him before the learned Magistrate at the time of passing of the order of remand and by refusing to furnish the copy of the said order, serious prejudice has been caused to him, which would vitiate the impugned detention order. 14.In the decision of the Division Bench of this court relied upon by the learned counsel for the petitioner reported in 2004-MLJ-Crl-945 (Karuppalagu Vs. The State of Tamil Nadu by Secretary to Government, Prohibition and Excise Department, Chennai and another), the Division Bench has referred to the earlier decision of the Division Bench of this court reported in 2000-2- MWN-Crl-52(Chinna Ponnu Vs. The Secretary, Prohibition and Excise Department, Government of Tamil Nadu, Chennai), wherein the Division Bench dealt with similar circumstances wherein the detenu was not furnished with a copy of the remand order and concluded thus:- “However, when the detenu sought the copy of the remand order in order to make an effective representation, there was a duty cast on the authorities to furnish that order as it is well https://hcservices.ecourts.gov.in/hcservices/ 5 known that the remand order is not only a judicial order, but one which would contain the complaint if any made by the detenu at the time of the detenu's production before the Magistrate regarding the ill-treatment, if any, suffered by the detenu at the hands of the sponsoring authority. The fact that any such complaint had been made has only to be established by the production of the remand order. That fact cannot be expected to be gathered from the special report which may or may not correctly set out, all that had transpired at the time the remand was ordered.” ” 15.It is needless to state that the remand order is not only a judicial order, but it normally contains the complaint of the detenu, if any made at the time of his production before the Magistrate and those facts cannot be gathered from the remand of warrant or from the special report. In such circumstances, we agree with the contentions raised by the learned counsel for the petitioner that by non furnishing of vital document, namely, the remand order, the detenu has lost valuable right to make an effective representation to the authorities concerned. 16.As regards the contention raised by the learned counsel for the petitioner with regard to non-furnishing of the bail application to the detenu,the learned counsel for the petitioner made a reference to the Booklet supplied to the detenu, which does not contain the copy of the bail application filed by the detenu and contended that non furnishing of the bail application to the detenu would vitiate the impugned detention order It is pertinent to refer to the paragraph 4 of the counter affidavit filed by the detaining authority, wherein it is stated as follows:- “It was observed through the sponsoring authority that the bail application filed by the detenu in the District Sessions Court, Srivillipuhur vide Cr.MP.No.1316/2011 was pending trial. Hence, no copy was available in this office and was not supplied to the detenu.” It is seen that the bail application filed on behalf of the detenu was a document relied upon by him to come to a subjective satisfaction that the detenu was likely to be released on bail in Cr.MP.No.1316/2011. If the bail application was placed before the detaining authority and on that basis the detaining authority came to the conclusion that the detenu was likely to be released on bail, such document being a relied upon document, should have been furnished to the detenu. Admittedly, such a document has not been furnished to the detenu, as it did not form part of the Booklet furnished to the detenu. The counter affidavit filed by the detaining authority would indicate that no copy of the bail applicable was available in the Office. 17.The Honourable Supreme Court in M.Ahamed Kutty Vs. Union of India and another (1990-2-SCC-1) has observed thus:- “7.Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the https://hcservices.ecourts.gov.in/hcservices/ 6 annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenu's right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case.” (Emphasis added).” 18.This court in Jarinabegam Vs. State of Tamil Nadu by Secretary to Government, Prohibition and Exercise Department, Chennai and another (2007- 1-MLJ-Crl-18) relying upon the decision of the Honourable Supreme Court cited supra has held that non furnishing of a copy of the bail application to the detenu has the effect of vitiating the order or detention. 19.As already analysed by us, in the facts and circumstances of the present case, non-supply of the copy of the bail application to the detenu has the effect of vitiating the impugned detention order. Further, due to non supply of the vital document i.e. remand order, the detenu has lost valuable right to make an effective representation to the authorities concerned. 20.In the light of the above said principles laid down by the Honourable Supreme Court and for the reasons stated above, the impugned order of detention is vitiated and the same is liable to be quashed. 21.In the result, this Habeas Corpus Petition is allowed and the impugned detention order passed by the 2nd respondent in Cr.MP.No.11/2011 (Goonda) dated 25.05.2011 is hereby quashed and the detenu Alagar is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Assistant Registrar (Crl.side) / TRUE COPY / Sub Assistant Registrar To: 1.The Secretary to Government, Home, Prohibition and Excise 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 Additional Public Prosecutor,Madurai Bench of Madras High Court,Madurai 5.The Joint Secretary to Government,Public(Law&Order),Fort.St.George,Chennai9 +1CC to Mr.R.Alagumani, Advocate. SR.No.27841. SRCM HCP(MD)No.408/2011 RP/07.09.2011/5P/7C. 16.08.2011. https://hcservices.ecourts.gov.in/hcservices/