1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.07.2011 CORAM: THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA AND THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN HCP(MD)No.362/2011 Thavasi Kani Petitioner Vs 1.The Secretary to the Government Home, Prohibition and Excise Department Secretariat, Chennai-9 2.The District Collector and District Magistrate Tirunelveli District 3.Inspector of Police, Kalakkadu Police Station Tirunelveli District Respondents Prayer:- This Habeas Corpus Petition is filed to issue a Writ of Habeas Corpus to call for records from the 2nd defendant in MHS.Confdl.No.73/2010 dated 31.12.2010, and quash the same, to produce the detenu Muthu Raj, S/o.Serma Pandi, aged about 23 years, now detained in the Central Prison, Palayamkottai before this court and to set him at liberty forthwith. For Petitioner : Mr.C.Mayil Vahana Rajendran for Mr.R.Anand For Respondents : Mr.Jyothi, Additional Public Prosecutor, ORDER (Order of the Court was made by ARUNA JAGADEESAN J.) The petitioner is the mother of the detenu Muthu Raj. The petitioner has come forward with this Habeas Corpus Petition, seeking for the relief of quashing the impugned detention order dated 16.04.2011, slapped on her son him 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.C.Mayil Vahana Rajendran, 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 https://hcservices.ecourts.gov.in/hcservices/ 2 “most likely” for the detenu to come out on bail. It is contended by the learned counsel for the petitioner that in Paragraph No.6 of the impugned order of detention, it is specifically stated by the detaining authority that the detenu has not moved any bail application so far in this case at the time of passing the order of detention. But, in spite of the same, casually and mechanically and without any subjective satisfaction, the impugned order of detention was passed without any materials available on record. 3. Per contra, 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 there is a compelling necessity to detain the detenu in order to prevent him from indulging in acts, which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14 of 1982. The learned Additional Public Prosecutor referred to the counter filed by the 2nd respondent, wherein the detaining authority has stated that it had taken into consideration all the relevant factors to arrive at subjective satisfaction at the time of passing the impugned order of detention and as such, the detaining authority 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.6 of the detention order as hereunder:- “I am aware that Thiru.Muthuraj is in remand in Kalakkadu Police Station Crime No.317/2010 and he has not moved any bail application so far in this case. In order to restrict him from indulging activities in future, which will be prejudicial to the maintenance of public order, it is necessary that he has to be kept in judicial custody.” 5. The above finding of the detaining authority is based on mere surmises and conjectures. Admittedly, the detenu has not filed any bail application even on the date of passing the impugned detention order. But, the detaining authority without any cogent material available on record has arrived at the conclusion that the detenu is likely to 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. Yet another infirmity in the impugned order of detention is to the effect that it is stated by the detaining authority in Paragraph No.6 that the detenu is in the habit of indulging in commission of criminal offence, but the detaining authority has not referred even a single case registered against the detenu, apart from the ground case registered against him in Cr.No.317/2010, in which he has not moved any bail application. https://hcservices.ecourts.gov.in/hcservices/ 3 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 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. The principle laid down in the decision cited supra has 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 come to the conclusion that though the detenu has not filed any bail application, in order to restrict him from indulging activities in future, it is necessary that he has to be kept in judicial custody. As such, the impugned order of detention is vitiated and the same is liable to be quashed. 8. In the result, this Habeas Corpus Petition is allowed and the impugned detention order passed by the 2nd defendant in MHS.Confdl.No.73/2010 dated 31.12.2010 is hereby quashed and the detenu Muthu Raj is set at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar To: 1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai-9 2.The District Collector and District Magistrate Tirunelveli District 3.The Superintendent, Central Prison, Palayamkottai 4.Inspector of Police, Kalakkadu Police Station Tirunelveli District https://hcservices.ecourts.gov.in/hcservices/ 4 5.The Joint Secretary to Government Public (Law & Order) Fort St.George, Chennai – 9 6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai srcm ssk/29.07.2011 /7c -4p/- HCP(MD)No.362/2011 https://hcservices.ecourts.gov.in/hcservices/