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.321 of 2011 A.Sundari ... Petitioner vs. 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai 600 009. 2.The Commissioner of Police, Madurai City, Madurai. 3.The Superintendent of Prison, Central Prison, Madurai. ... Respondents Prayer: This Habeas Corpus Petition is 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 detention order passed in No.119/BDFGISSV/2010 dated 27.12.2010 on the file of the 2nd respondent and to quash the same as illegal and direct the respondents to produce the body of the detenue viz., A.Raja son of Ayyavu, detained at Central Prison, Madurai before this Court and set him at liberty. For Petitioner : Mr.S.Subbiah For Respondents : Mr.P.Jothi Addl.Public Prosecutor O R D E R (Order of the Court was made by G.M.AKBAR ALI,J.) The petitioner, who is the father of the detenu, viz., A.Raja has filed this petition challenging the order of detention, dated 27.12.2010, passed by the 2nd respondent in No.119/BDFGISSV/2010 under the Tamil Nadu Act 14 of 1982, branding the petitioner's son by name Ranjith Kumar as a "Goonda" and directing him to be detained at the Central Prison, Madurai. 2.Learned counsel appearing for the petitioner submitted that though many grounds have been raised in the petition, he mainly attacks the order of detention on the following ground: https://hcservices.ecourts.gov.in/hcservices/ 2 The Detaining Authority has failed to consider the fact that there is no imminent possibility of the detenu coming out on bail. It is submitted that the reasons stated by the Detaining Authority that since in similar cases bail are granted by the concerned Court or Higher Court, which is evident by the bail order granted. Therefore, there is a real possibility of the detenu coming out on bail in all the cases pending against him and indulge in activities prejudicial to the maintenance of public order in future is mere ipse dixit of the detaining authority and without any cogent materials and this shows non application of mind on the part of the detaining authority. The learned counsel relied on the Full Bench decision of this Court reported 2005 MLJ (CRI.) 101 (Thirupathi.K. Vs. District Magistrate and District Collector, Tiruchirapalli). 3.The learned Public Prosecutor would submit that the Detaining Authority has considered that the detenu is taking steps to file bail applications in the ground case as well as in the adverse case and on such consideration, the detaining authority satisfied himself that there was a real possibility of the detenu coming out on bail. Therefore, according to the learned Additional Public Prosecutor, the detaining authority has recorded his subjective satisfaction to detain the detenu under Tamil Nadu Act 14 of 1982 after applying his mind to the materials placed before him and there is nothing to interfere with the order of detention. 4.We have heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor for the respondents and gave our anxious consideration. 5.The petitioner, who is the father of the detenu, has come forward with this petition to set aside the detention order dated 27.12.2010. The contentions raised by the petitioner is that the Detaining Authority has passed the impugned order mechanically and without application of mind and there is no cogent material to come to the conclusion that there is a real possibility of the detenu coming out on bail. 6.In the Full Bench decision of this Court in Thirupathi.K. V. District Magistrate and District Collector, Tiruchirapalli reported in 2005 M.L.J. (CRI.) 1101, it was held as follows: "A strict insistence of the usage of the word "imminent" is not necessary and the other convincing expressions like "real possibility", "very likely" or "most likely" can be used by the detaining authority to reflect its satisfaction with regard to immediate release of the detenu on bail. ... The orders of detention and its continuance should be in conformity with Art.22 of the Constitution of India. The detaining authority is required to follow strictly and scrupulously the forms and rules of law prescribed in that behalf or by the statutory provision under which the order of detention is being made after arriving at a subjective satisfaction. Any violation would entail quashing of the order of detention." https://hcservices.ecourts.gov.in/hcservices/ 3 7.It is by now well settled that under all detention laws, the orders of detention and its continuance of detention should be in conformity with Article 22 of the Constitution of India and slightest infraction of the constitutional protection enshrined therein would be a valid ground to set the detenu at liberty. 8.There must be cogent material before the authority who passes the detention order for inferring that the detenu was likely to be released on bail. This inference must be drawn from material on record and must not be ipse dixit of the Authority passing the detention order. 9.In the case of person in custody a detention order can validly be passed if the authority passing the order is aware of the fact that he is actually in custody; if he has reason to believe on the basis of reliable material placed before him (a)that there is real possibility of his being released on bail, and (b)if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording its satisfaction in this behalf,such and order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such oppositions to question it before a higher court. 10.Therefore the imminent possibility or real possibility of the detenu coming out on bail is to the subjective satisfaction of the detaining authority and not on mere ipse dixit. 11.That being the legal position, in the present case, admittedly the detenu is in remand in the ground case as well as in the adverse cases. 12.In 2005 MLJ 882 Prathab Raj Vs. Commissioner of Police, Chennai, this Court held that when there is a bail application filed by the detenu and the same is pending and in the absence of imminent possibility of his coming out on bail, the impugned order of detention is liable to be quashed. Therefore, we are of the considered view that the impugned detention order was passed mechanically and without application of mind and as such the detention order, dated 27.12.2010, is liable to be quashed on this ground alone. 13.Accordingly, the habeas corpus petition is allowed and the impugned order of detention, dated 27.12.2010, passed by the 2nd respondent in his proceedings No.119/BDFGISSV/2010, is quashed. The detenu is directed to to be set at liberty forthwith, unless his detention is required in connection with any other case. nbj Sd/- Assistant Registrar[W] /True copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 4 To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai 600 009. 2.The Commissioner of Police, Madurai City, Madurai. 3.The Superintendent of Prison, Central Prison, Madurai. 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. H.C.P.(MD)No.196 of 2011 Dated:24.06.2011 4P/5C RPB 20.07.2011 https://hcservices.ecourts.gov.in/hcservices/