1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27.04.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI H.C.P.(MD)No.164 of 2011 Narayanan ..Petitioner Vs. 1. The Commissioner of Police, Tiruchirapalli City, Tiruchirapalli. 2. The State rep by The Secretary to Government, Home, Prohibition and Excise Department, Fort.St.George, Secretariat, Chennai – 9. 3. The Inspector of Police, Palakkarai Police Station, Tiruchirapalli. ..Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, directing the respondents herein to produce the detenu Mohan @ Paei Mohan Son of Seenivasa Konar, aged 36 years, who has been termed as “Goonda”, who is now confined in Central Prison, Trichy and call for records in C.P.O./T.C./I.S./D.O.No.60/2010, dated 06.09.2010 passed by the 1st respondent herein and set aside the same and set the detenu at liberty. For petitioner : Mr.T.A.Omprakash For respondents : Mr. Daniel Manoharan, Addl.Public Prosecutor ORDER (Order of the Court was made by G.M.AKBAR ALI, J) The petitioner is the brother-in-law of the detenu, namely, Mohan @ Paei Mohan. Challenging an Order of Detention made by the 1st respondent in C.P.O./T.C./I.S./D.O.No.60/2010, dated 06.09.2010, branding the detenu as a “Goonda” under the Provisions of the Tamil Nadu Prevention of Dangerous Activities of Boot-Leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), this Habeas Corpus Petition has been filed by the petitioner. 2.Mr.T.A.Omprakash, the learned counsel appearing for the petitioner would submit that 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 though the bail applications filed by the detenu in the adverse cases as well as in the ground case were all came to be dismissed except in 2nd adverse case, and thereafter, the detenu has not filed any bail application either in adverse cases or in the ground case, the reasons stated by the Detaining Authority that 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 https://hcservices.ecourts.gov.in/hcservices/ 2 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.) 1101 (Thirupathi.K. Vs. District Magistrate and District Collector, Tiruchirapalli). 3.Mr. Daniel Manoharan, the learned Additional Public Prosecutor would submit that 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 appearing for the petitioner as well as the learned Additional Public Prosecutor for the respondents and gave our anxious consideration. 5.We have perused the detention order of the 1st respondent and in paragraph 6 of the order reads as follows:- “6. I am aware that Mohan @ Paei Mohan is in remand in Palakkarai P.S. Cr.No.1376/2010 and Gandhimarket P.S.Cr.No.1545/2010. He has not filed bail application in these case so far. His brother- in-law Narayanan stated before the Inspector of Police, Palakkarai P.S. that he would take him on bail in these cases. In the adverse case in Palakkarai P.S. Cr.No.354/2010 and Cr.No.1235/2010, he filed bail applications and he was released on bail. From this, I draw the inference that there is a real possibility of his coming out on bail in Palakkarai P.S. Cr.No.1376/2010 and Gandhimarket P.S.Cr.No.1545/2010 by filing bail applications in the court. If he comes out on bail, he will indulge in future activities which will be prejudicial to the maintenance of public order. Further, recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities which are prejudicial to the maintenance of public order. Based on the material placed before me, I am fully satisfied that the accused Mohan @ Paei Mohan is a GOONDA and there is a compelling necessity to detain him in order to prevent him from indulging in such activities in future which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14/1982.” 6.Admittedly, against the petitioner, there are three adverse case for an offence under Sections 387 and 506(ii) I.P.C. The ground case was registered on 16.08.2010 for the alleged offence under Sections 392 r/w 397 and 427 I.P.C. However, the allegation is that the detenu picked Rs.800/- in knife point from a person. It is admitted that the detenu has not filed any bail applications, except the second adverse case. In https://hcservices.ecourts.gov.in/hcservices/ 3 second adverse case, the detenu was released on bail only for the reason that the 3rd respondent neither submitted any reply nor objected to the bail application before the Court concerned. That being so, the observation made by the detaining authority that he will come out on bail shows that he has not applied his mind with subjective satisfaction and there is no subjective satisfaction, while passing the order of detention. 7.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." 8.It is 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. 9.There must be cogent materials 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. 10.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. 11.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. https://hcservices.ecourts.gov.in/hcservices/ 4 12.That being the legal position, in the present case, admittedly the detenu is in remand in the ground case as well as in all the adverse cases, except the second adverse case. Further, the petitioner has not filed any bail application so far in all the cases except the second adverse case. As rightly pointed out by the learned counsel for the petitioner, the petitioner, who is the brother-in-l1w of the detenu, is not taking any steps to file further bail applications. 13.In 2005 MLJ 882 Prathab Raj Vs. Commissioner of Police, Chennai, this Court held that when there is no bail application moved by the detenu 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 06.09.2010, is liable to be quashed on this ground alone. Therefore, the grounds raised by the learned counsel for the petitioner merit acceptance and the impugned detention order is liable to be quashed on those grounds. 14.Accordingly, the habeas corpus petition is allowed and the impugned order of detention, dated 06.09.2010, passed by the 1st respondent in his proceedings in C.P.O./T.C./I.S./D.O.No.60/2010, is quashed. The detenu is directed to to be set at liberty forthwith, unless his detention is required in connection with any other case. Sd/- Deputy Registrar (Accounts) /True Copy/ Assistant Registrar To 1. The Secretary to Government, Home, Prohibition and Excise Department, Fort.St.George, Secretariat, Chennai – 9. 2. The Commissioner of Police, Tiruchirapalli City, Tiruchirapalli. 3. The Superintendent, Central Prison, Tiruchirapalli. 4. The Joint Secretary to Government, Public (Law & Order), Fort St. George, Chennai – 9. 5. The Inspector of Police, Palakkarai Police Station, Tiruchirapalli. 6. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. + 1 cc to Mr.T.A.Om Prakash, Advocate, SR No.15563 H.C.P.(MD)No.164 of 2011 27.04.2011 MPK RJ/25.5.11 4p/8c https://hcservices.ecourts.gov.in/hcservices/