1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.06.2011 CORAM: THE HONOURABLE MR. JUSTICE S.RAJESWARAN and THE HONOURABLE MR. JUSTICE G.M.AKBAR ALI Habeas Corpus Petition (MD) No.227 of 2011 Rajangam ... Petitioner vs. 1.The Secretary to the Government, State of Tamil Nadu, Prohibition and Excise Department, Chennai-9. 2.The Commissioner of Police Tiruchirappalli City, Trichy District. ... Respondents Prayer: This Habeas Corpus Petition is filed under Article 226 of the Constitution of India to issue a writ of habeas corpus calling for the entire records connected with the detention order of the second respondent in detention order No.C.P.O./T.C./I.S./D.O.No.63/2010 dated 24.09.2010 and quash the same and direct the respondents to produce the body and person of the son of the petitioner by name Muthumani aged about 22 years now confined in Central Prison, Trichy before this Court and set him at liberty forth with. For Petitioner : Mr.C.M.Arumugam For Respondents : Mr.P.Jothy, 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, has filed this petition challenging the order of detention, dated 24.09.2010, clamped by the second respondent 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), on the detenu branding him as a "Goonda" and directing him to be detained at the Central Prison, Tiruchirappalli. 2. Mr.C.M.Arumugam, learned counsel for the petitioner, submitted that though many grounds have been raised in the petition, he confines his submission on only one ground, namely, non-application of mind on the part of the detaining in recording his satisfaction as to the real possibility of the detenu coming out bail. It is submitted that when it is admitted by the detaining authority himself that the earlier bail application filed by the detenu in the earlier case was dismissed and thereafter he has not filed any application before any court of law, the conclusion arrived at by the Detaining Authority that there is a real possibility of the detenu coming out on bail is mere ipse dixit of the https://hcservices.ecourts.gov.in/hcservices/ 2 detaining authority and without application of mind. In support of his submission, the learned counsel relied on the judgment of the Supreme Court in A.Shanthi v. Government of Tamil Nadu [(2006) 8 SCC 711]. 3. The learned Public Prosecutor would submit that the Detaining Authority has considered all the materials placed before him and after analysing the same, the detaining authority has formed his opinion as to the possibility of the detenu coming out on bail and therefore there is nothing to interfere with the order of detention. Therefore, according to the learned Additional Public Prosecutor, the grounds are not available to the petitioner and consequently the petition is liable to be dismissed. 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 24.09.2010. The grounds raised by the petitioner are that the Detaining Authority has passed the impugned order mechanically and without application of mind and there is no cogent material before him to come to the conclusion that there is a real possibility of the detenu coming out on bail. 6. It is by now well settled that in all detention laws, the orders of detention and its continuance should be in conformity with Article 22 of the Constitution of India and even a slightest infraction of the constitutional protection enshrined therein would be a valid ground to set the detenu at liberty. Therefore, there must be cogent materials before the Authority passing the detention order for inferring that the detenu was likely to be released on bail. This inference must be drawn from materials on record and must not be ipse dixit of the Authority passing the detention order. In the decision relied on by the learned counsel for the petitioner [(2006) 9 SCC 711] cited supra, the Hon'ble Supreme Court has held as follows: "4.In similar circumstances, this Court in T.V.Saravanan v. State - [(2006) 2 SCC 664], directed release of the detenu. Counsel for the State is unable to distinguish that judgment. this Court in T.V.Saravanan has held that the "imminent possibility" of the appellant coming out on bail is merely the 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. 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 https://hcservices.ecourts.gov.in/hcservices/ 3 (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. 8. 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. 9. That being the legal position, in the present case, when the bail application filed by the detenu in the ground case was dismissed and he has not filed any further application after dismissal of the earlier bail application, the Detaining Authority, without any material, much less cogent materials, has recorded his subjective satisfaction as to the real possibility of the detenu coming out on bail on mere ipse dixit and clamped the order of detention. In paragraph No.5 of the Grounds of Detention, the detaining authority has observed as follows: "(5)I am aware that Muthumani is in remand in Thogur P.S.Cr.No.102/2010, Fort P.S.Cr.No.2036/2010, Woraiyur P.S.Cr.No.1615/2010. He has not filed any bail application so far in Thogur P.S.Cr.No.102/2010, Fort P.S.Cr.No.2036/2010. He has filed bail application in Woraiyur P.S.Cr.No.1615/2010 before the Principal Sessions Judge, Tiruchirappalli in Cr.M.P.No.1982/2010 and the same was dismissed on 14.09.2010. His father Rajangam has stated before the Inspector of Police, Woraiyur P.S. That he would take him on bail. From this , I draw the inference that there is a real possibility of his coming out on bail by filing bail applications in the court. ...." 10. As rightly pointed out by the learned counsel for the petitioner, the detenu has not filed bail application in the ground case after dismissal of earlier application. In such circumstances, the subjective satisfaction arrived at by the detaining authority as to the real possibility of the detenu coming out on bail in the ground case is not based on any materials as held by the Hon'ble Supreme Court in the decision cited supra. Therefore, we are of the considered view that the impugned detention order has been passed mechanically and without application of mind and as such the detention order, dated 29.10.2010, is vitiated. 11. Accordingly, the habeas corpus petition is allowed and the impugned order of detention, dated 24.09.2010, passed by the 2nd respondent in his proceedings in C.P.O./T.C./I.S./D.O.No.63/2010 is quashed. The detenu is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Assistant Registrar (C.O) /True Copy/ Sub Assistant Registrar (C.S) https://hcservices.ecourts.gov.in/hcservices/ 4 To: 1.The Secretary to the Government, State of Tamil Nadu, Prohibition and Home Excise Department Chennai-9. 2.The Commissioner of Police Tiruchirappalli City, Trichy District. 3.The Superintendent, Central Prison, Trichy. 4.The Joint Secretary to Government (Law & Order), Fort St. George, Chennai – 9. 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. + 1 cc to Mr.C.M.Arumugam, Advocate, SR No.10893 Order in H.C.P.(MD)No.227 of 2011 Dated:22.06.2011 RR RJ/30.6.11 4p/7c https://hcservices.ecourts.gov.in/hcservices/