1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.08.2011 CORAM: THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA AND THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN HCP(MD)No.399/2011 Mydeen Beevi .. Petitioner Vs 1.The Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai-9 2.The District Collector and District Magistrate Collector's Office, Kanyakumari District at Nagercoil 3.The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli 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 PD.No.07/2011 dated 11.05.2011, to set aside the same, to produce the detenu Kaboor @ Chinna Kaboor, aged about 32 years, son of Mazeeth, now detained in the Central Prison, Palayamkottai before this court and to set him at liberty forthwith. For Petitioner : Mr.R.Alagumani For Respondents : Mr.P. Jyothi, Additional Public Prosecutor ORDER (Order of the Court was made by ARUNA JAGADEESAN J.) The petitioner is the mother of the detenu. The petitioner has come forward with this Habeas Corpus Petition, seeking for the relief of quashing the impugned detention order dated 11.05.2011, slapped on her son 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 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 “most likely” for the detenu to come out on bail. It is contended by the learned counsel for the petitioner that in Paragraph No.4 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 and hence, the same is vitiated. https://hcservices.ecourts.gov.in/hcservices/ 2 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 if the detenu comes out on bail in future, he will indulge in such activities, which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14 of 1982 and there is a compelling necessity to detain him in order to prevent him from indulging in such activities which are prejudicial to the maintenance of public peace and order. The learned Additional Public Prosecutor would further submit that the detaining authority has 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.4 of the detention order as hereunder:- “I am aware that he is remanded in Eraniel PS.Cr.No.145/2011 and so far no bail application was filed on his behalf. But, he may come out on bail by filing a bail application before the same court or higher court and if comes out on bail in future, he will indulge in such activities which would be prejudicial to the maintenance of public peace and public order.” 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 of the impugned detention order. But, the detaining authority without any cogent material available on record has arrived at the conclusion that if the detenu comes out on bail, he is likely to indulge in such activities which are prejudicial to the maintenance of public peace and 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. 6. At this juncture, it is relevant to refer to 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 https://hcservices.ecourts.gov.in/hcservices/ 3 absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention.” 7. 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.” 8. 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.” 9. The principles laid down in the decisions cited supra are 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 if the detenu comes out on bail in future, he will indulge in such activities, which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14 of 1982 and there is a compelling necessity to detain him in order to prevent him from indulging in such activities which are prejudicial to the maintenance of public peace and 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 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. In the light of the above said principles laid down by the Honourable Supreme Court and the observations, the impugned order of detention is vitiated and the same is liable to be quashed. https://hcservices.ecourts.gov.in/hcservices/ 4 10. In the result, this Habeas Corpus Petition is allowed and the impugned detention order passed by the 2nd respondent in PD.No.07/2011 dated 11.05.2011 is hereby quashed and the detenu Kaboor @ Chinna Kaboor is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Assistant Registrar (T & P) /True copy/ Sub Assistant Registrar(C.S) To: 1.The Secretary to Government Home, Prohibition and Excise Department Secretariat, Chennai-9 2.The District Collector and District Magistrate Kanyakumari District at Nagercoil 3.The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli 4.The Joint Secretary to Government, Public (Law & Order) Fort St.George, Chennai-9 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai srcm HCP(MD)No.399/2011 03.08.2011 TR : 17.08.2011: 4p/6c https://hcservices.ecourts.gov.in/hcservices/