Vaithi @ Vaithilingam & Others v. The District Collector and District Magistrate & Others
2005-06-27
A.R.RAMALINGAM, P.SATHASIVAM
body2005
DigiLaw.ai
Judgment :- P. Sathasivam, J. Since the issue/point raised in these petitions is one and the same and similar, they are being disposed of by the following common order. 2. The petitioners herein challenge the detention orders dated 31.12.2004, 3.1.2005, 3.1.2005 and 17.01.2005 respectively, detaining them under the National Security Act, 1980, with a view to prevent them from acting in any manner prejudicial to the maintenance of public order. 3. Heard learned counsel for petitioner, learned Government Advocate for Respondents-1 and 2 and learned Additional Central Government Standing Counsel for R-3. 4. Learned counsel for the petitioners, at the foremost, projected the point relating to non-application of mind on the part of Detaining Authority, particularly with reference to the 'imminent possibility' of the detenus coming out on bail. According to the counsel, on this ground, the impugned detention orders are liable to quashed. 5. In order to appreciate the said contention, it is useful to refer what is stated in paragraph No.4 in the grounds of detention (HCP No.129 of 2005), which reads as under:- "I am aware that Thiru. Vaithi alias Vaithilingam, son of Ganesan is now in remand. The bail application filed on behalf of the detenu is not yet been disposed of. If he comes out on bail after a lapse of some time and if he let to remain at large there is every possibility that he is likely to indulge in such further anti social activities in future as well. Therefore there is a compelling necessity to pass this order of detention with a view to prevent him from indulging in such prejudicial activities affecting the public order in future as the local law did not give any desired effect. " 6. By pointing out the fact that when the Detaining Authority is aware of the fact that the detenus are in remand, there is no possibility of their coming out before the expiry of the remand period, learned counsel for the petitioners submitted that the detention orders are unnecessary. He also submitted that the Detaining Authority has not considered relevant/material aspect as to whether there is "likelihood" or "imminent possibility" of the detenus coming out on bail. According to him, in the absence of such relevant material, the ultimate detention orders passed by the said authority cannot be sustained. 7.
He also submitted that the Detaining Authority has not considered relevant/material aspect as to whether there is "likelihood" or "imminent possibility" of the detenus coming out on bail. According to him, in the absence of such relevant material, the ultimate detention orders passed by the said authority cannot be sustained. 7. In support of his contention, learned counsel for the petitioners heavily relied on a recent judgment of a Division Bench of this Court reported in 2005 M.L.J. Criminal 228 (Thirumavalavan, A. vs. Government of Tamil Nadu). While considering similar grounds of detention with regard to non-application of mind, the Division Bench, after considering almost all the earlier case laws commencing from 1964 SCR 921 (Rameshwar Shaw v. District Magistrate, Birdwan) ending with (2004) MLJ (Crl) 739 (Mohammed Meeran, Chennai vs. State of Tamil Nadu) and the phraseology used in the grounds of detention therein, particularly paragraph No.5, found that the Detaining Authority was not possessed with all required materials and that the ultimate detention order cannot be sustained. The following conclusion arrived at by the Division Bench in paragraph No.22 is relevant, "22. A perusal of para.5 of the grounds of detention extracted above would never convey the expression "imminent possibility of the detenu being released on bail" or "likelihood of the detenu coming out on bail" or "release on bail was likely" or "release on bail in the immediate future" or "release on bail at the earliest" indicating that the release would likely to happen very soon. It has been merely stated in para.5 of the grounds of detention that "there is possibility of moving a bail and coming out on bail by filing bail application in the Court." Whether this is enough? Our answer would be emphatic "no". ......" 8. We have already extracted paragraph No.4 in the grounds of detention, which amply shows the mind of the Detaining Authority in arriving at the subjective satisfaction. As discussed and observed in the above referred Division Bench Judgment and in the light of the materials available in our case (paragraph No.4 of the grounds of detention), we are satisfied that, as had been stated in the other case, in paragraph No.4 of the grounds of detention in the present Petitions, it is merely stated that " ....
As discussed and observed in the above referred Division Bench Judgment and in the light of the materials available in our case (paragraph No.4 of the grounds of detention), we are satisfied that, as had been stated in the other case, in paragraph No.4 of the grounds of detention in the present Petitions, it is merely stated that " .... If he comes out on bail after a lapse of sometime and if he let to remain at large there is every possibility that he is likely to indulge in such further anti social activities in future as well. ....". The said conclusion is not sufficient as observed in the above referred decision of the Division Bench. 9. As stated in the Division Bench order, we are equally conscious about the position of law that we cannot be called upon to go into the adequacy of the materials placed before the Detaining Authority to arrive at the subjective satisfaction that there was immediate likelihood of the release of the detenu necessitating the detention order. However, the subjective satisfaction arrived at by the Detaining Authority with regard to imminent or likelihood of the detenu being released on bail has to be expressed in clear terms in the grounds of detention. The essential requirements are, (a) "such release was likely", and (b) "that it was imminent". In the absence of those requirements, it has to be held that the order of detention is vitiated. 10. As discussed above, if the said expression with reference to the immediate release is apparently absent, then, it has to be held that non-application of mind on the part of the Detaining Authority is quite evident. We accept the contention raised by the learned counsel for the petitioners. In view of the same, it is unnecessary to go into other contentions raised in the affidavits. 11. Accordingly, the Habeas Corpus Petitions are allowed and the impugned orders of detention are set aside. The detenus are directed to be set at liberty forthwith from the custody unless they are required in some other case or cause.