1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.11.2011 CORAM: THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU HABEAS CORPUS PETITION(MD).No.677 of 2011 Mangai : Petitioner Vs. 1.The District Collector and District Magistrate, Tirunelveli District, Tirunelveli 9. 2.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai 600 009. 3.The Inspector of Police, Nanguneri Police Station, Tirunelveli City : Respondents PRAYER: Petition is filed under Article 226 of the Constitution of India to direct the respondents to produce the body of the detenu, namely Murugan, aged about 24 years S/o.Sudalaikannu Thevar, before this Court, who is now detained in the Central Prison, Palayamkottai in pursuant to the detention order passed by the first respondent in No.M.H.S.Confdl.No.06/2011, dated 12.02.2011 to call for the records and quash the same and release the detenu at liberty forthwith. For Petitioner : Mr.N.Mohideen Basha For Respondents : Mr.T.Mohan Additional Public Prosecutor O R D E R [Order of the Court was made by S.NAGAMUTHU, J] The petitioner is the wife of one S.Murugan, S/o.Sudalaikannu Thevar, who has been detained under Section 3(1) of the Tamil Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (in short "Tamil Nadu Act 14/1982), on the orders of the first respondent, by his proceedings in M.H.S.Confdl.No.06/2011, dated 12.02.2011. Now, he has been lodged at Central Prison, Palayamkottai, Tirunelveli District. 2. According to the Detention Order, the detenu was involved in Crime Nos.161 of 2008, 9 of 2009, 75 of 2009 and 193 of 2010, on the https://hcservices.ecourts.gov.in/hcservices/ 2 file of the Nanguneri Police Station. From these cases, he came to the adverse notice of the Sponsoring Authority as a Goonda. Again, he was involved in yet another case in Crime No.34 of 211, on the file of the Nanguneri Police Station for offence punishable under Section 397 of the Indian Penal Code. He was arrested on 05.02.2011 and on production before the learned Judicial Magistrate, Nanguneri, he was remanded to judicial custody till 18.02.2011. He was lodged at Central Prison, Palayamkottai, Tirunelveli District. 3. While so, on being sponsored by the third respondent, the first respondent passed the impugned Detention Order on 12.02.2011. In Paragraph No.6 of the Detention Order, the first respondent has stated that the detenu had not moved any Bail Application so far in the case in Crime No.34 of 2011. However, in the Detention Order, the Detaining Authority has stated that in order to restrict him from indulging in such activities in future, which will be prejudicial to the maintenance of public order, it was necessary that he had to be kept in judicial custody, since the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities. 4. The petitioner challenges the said order on several grounds. The first and foremost contention raised in this Habeas Corpus Petition and argued by the learned counsel for the petitioner is that since there was no real possibility of the detenu being released on bail, the Detention Order is not sustainable in law. In order to substantiate this contention, the learned counsel for the petitioner would take us through the Detention Order, wherein it has been specifically stated that the detenu did not move any Bail Application before any Court. When that be so, according to the learned counsel, there is no real possibility of release of the detenu on bail. Thus, the Detention Order is the result of total non application of mind on the part of the Detaining Authority, the learned counsel contended. In this regard, the learned counsel for the petitioner would rely on a Judgment of the Hon'ble Supreme Court in Rekha v. State of Tamil Nadu reported in 2011 (3) MLJ (Crl) 422. 5. The learned Additional Public Prosecutor would, however, oppose this Habeas Corpus Petition. He would submit that in normal course, in similar cases, the Courts do grant bail to the accused involved in such crimes. Therefore, the Detaining Authority was right in concluding that the detenu would be released on bail at any moment on an application for bail being moved by him. 6. We have considered the above rival submissions. The controversy before this Court has already been well settled by the Hon'ble Supreme Court in Rekha's case. In Paragraph Nos.24, 26 and 27 of the said Judgment, the Hon'ble Supreme Court has held as follows:- "24. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception https://hcservices.ecourts.gov.in/hcservices/ 3 to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed. 26. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. 27. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal." 7. A perusal of the above Judgment would keep things beyond pale of any doubt that the Detaining Authority should have materials before him to come to the conclusion that there was an imminent possibility of the detenu being released on bail in the main case. Such satisfaction can be arrived at from various factors, such as, grant of bail to the co-accused in the same case, grant of bail for the detenu in similar cases or from the fact that in similar cases, similar accused have been granted bail by the Courts. But, in the case on hand, there is nothing stated in the impugned Detention Order that there was any material before the Detaining Authority to come to the conclusion that there was imminent possibility of the detenu being released on bail by the Court. Thus, the impugned Detention Order, not only reflects the non application of mind, but also devoid of merits, as there was no satisfaction recorded regarding the imminent possibility of bail being granted to the detenu. Thus, applying the law laid down by the Hon'ble Supreme Court, as referred to above, we are of the considered view that the impugned Detention Order deserves to be quashed. https://hcservices.ecourts.gov.in/hcservices/ 4 8. In the result, this Habeas Corpus Petition is allowed and the impugned Detention Order passed by the second respondent, in his proceedings No.M.H.S.Confdl.No.06/2011, dated 12.02.2011, is quashed. The detenu, by name, S.Murugan, aged about 24 years S/o.Sudalaikannu Thevar, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case. Sd/- Assistant Registrar(Records) /True Copy/ Sub Assistant Registrar To 1.The District Collector and District Magistrate, Tirunelveli District, Tirunelveli 9. 2.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai 600 009. 3.The Inspector of Police, Nanguneri Police Station, Tirunelveli City. 4.The Addl.Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 5.The Superintendent, Central Prison, Palayamkottai 6.The Joint Secretary to Govt. Govt. of Tamil Nadu Public (Law & Order), Fort St.George, Chennai -9 +1cc to Mr.M.Mohideen Basha, Advocate, Sr.No. 41521 nb ssk/13.12.2011 /8c -4p/- ORDER MADE IN HABEAS CORPUS PETITION(MD).No.677 of 2011 25.11.2011 https://hcservices.ecourts.gov.in/hcservices/