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2005 DIGILAW 933 (MAD)

Azhagiri v. State of Tamil Nadu & Another

2005-06-27

A.R.RAMALINGAM, P.SATHASIVAM

body2005
Judgment :- P.Sathasivam, J. The petitioner is the friend of one Kutti @ Venkatesh, who was detained as ‘Goonda’, as contemplated under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), by the impugned proceedings dated 06.12.2004. He challenges the said detention order on various grounds. 2. Learned counsel appearing for the petitioner, at the foremost, projected that in the absence of sufficient materials that the detenu will come out on bail in the grounds of detention, the detention order is liable to be quashed on the ground of non-application of mind. 3. With regard to the said contention, learned counsel for the petitioner took us through paragraph No.5 of the grounds of detention, wherein, the Detaining Authority has stated that he was aware that Kutti @ Venkatesh had been remanded to judicial custody on 24.11.2004 and that he is still in Central Prison, Salem, as a remand prisoner. It is further stated that he was also aware that no bail application has been filed by him or on his behalf so far. In such circumstances, by observing that the imminent possibility of his filing a bail application in near future cannot be ruled out and after holding that if he applies for bail, "he may be released on bail", because in similar cases, bail is granted by the lower court or the higher court after efflux of certain time, the Detaining Authority arrived at a conclusion that if he is let out on bail, he is likely to indulge in such prejudicial activities in future, and passed the impugned order of detention. 4. A perusal of the said passage makes it clear that the Detaining Authority was aware of the fact that the detenu was a remand prisoner and confined in Central Prison, Salem, on 24.11.2004. It is also clear that the Detaining Authority was also aware of the other fact that the detenu did not file any bail application nor any one filed application on his behalf, seeking bail. Though the Detaining Authority has stated that the imminent possibility of his filing a bail application in near future cannot be ruled out, he has not concluded or collected required materials that there is imminent possibility of his coming out on bail. 5. Though the Detaining Authority has stated that the imminent possibility of his filing a bail application in near future cannot be ruled out, he has not concluded or collected required materials that there is imminent possibility of his coming out on bail. 5. In this regard, learned counsel for the petitioner very much pressed into service the decision of the Supreme Court reported in 1994 SCC (Cri) 354 (Rivadeneyta Ricardo Augustin v. Government of Delhi). In the said decision, Their Lordships of the Supreme Court, after considering the principles laid down in Kamarunnissa vs. Union of India ( 1991 (1) SCC 128 : 1991 SCC (Cri) 88) have concluded thus:- "The question for consideration is whether there was material before the authority establishing that the detenu is likely to be released or that there was imminent possibility of his being released and whether he was satisfied about the said aspects? " According to Their Lordships, the said questions have to be considered by the Detaining Authority before ordering detention. 6. In the case on hand, the grounds referred, particularly in paragraph No.5, merely speaks of 'possibility' of the detenu's release in case he moves a bail petition. As rightly stated, it neither says that such release was likely or that it was imminent. The statement made in paragraph No.5 falls short of the requirements enunciated by the Apex Court in Kamarunnissa's case (cited supra). In similar circumstances, a Division Bench of this Court, in Velmurugan @ Velu v. The Commissioner of Police (2005 (1) CTC 577), following the decisions of the Supreme Court in Kamarunnissa's case and Rivadeneyta Ricardo Augustin's case (both cited supra), after finding that an essential requirement, viz., the imminent possibility of the detenu coming out on bail, is absent, arrived at the conclusion that the order of detention is vitiated. We are in respectful agreement with the said view. In the absence of such an essential requirement, viz., 'such release was likely or that it was imminent', it has to be held that the order of detention is vitiated. As a corollary, we have to conclude that the impugned order of detention is liable to be set aside. 7. Accordingly, the Habeas Corpus Petition is allowed and the impugned order of detention dated 06.12.2004 is set aside. As a corollary, we have to conclude that the impugned order of detention is liable to be set aside. 7. Accordingly, the Habeas Corpus Petition is allowed and the impugned order of detention dated 06.12.2004 is set aside. The detenu is directed to be set at liberty forthwith from the custody unless he is required in some other case or cause.