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2013 DIGILAW 3883 (MAD)

Raj v. Secretary to Government

2013-11-11

P.N.PRAKASH, S.RAJENDRAN

body2013
ORDER S. Rajeswaran, J. 1. Challenge is made to the order of detention passed by the second respondent vide proceedings in SDFGISSV No. 340/2013, dated to be detained under the provisions of Tamil Nadu prevention of dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondes, Immoral Traffic Offenders, Sand Offenders Slum-grabbers and Video Pirates Act, 1982) (Tamil Nadu Act 14 of 1982) branding him as 'GOONDA'. As per the grounds of detention, dated 05.07.2013, passed by the second respondent, the detenu came to adverse notice in the following cases: (i) Adverse Case: Sl No. Name of the Police Station and Crime No. Section of Laws 1. R-10, MGR Nagar P.S. Crime No.587/2013 294(b), 341, 384, 427 and 506 (ii) IPC 2. R-10, MGR Nagar P.S. Crime No.737/2013 341, 147, 148, 384 and 506 (ii) IPC (ii) Ground Case: Sl No. Name of the Police Station and Crime No. Section of Laws 1. R-10, MGR Nagar P.S. Crime No.1148/2013 341, 294(b), 323, 336, 427, 397 and 506(ii) IPC 2. Though may grounds have been raised in the petition, the learned counsel appearing for the petitioner, confines his argument only in respect of non-application of mind on the part of the detaining authority in passing the order detention. 3. According to the learned counsel for the petitioner, insofar as the ground case in Crime No. 1 148 of 2013 registered by 8-10 M.G.R. Nagar Police Station is concerned, the detenu had filed a bail application in Crl. M.P. No. 7597/2013 before the learned Principal Sessions Judge, Chennai and the same was dismissed on 04.07.2013. Again he moved another bail application in the ground case in Crl. M.P. No. 7813/2013 before the learned Principal Sessions Judge, Chennai and the same is pending as on the date of the passing of the detention order. As far as the adverse cases are concerned the detenu had filed bail applications in Crl. M.P. Nos. 2422/2013 and 2421/2013 before the XXIII Metropolitan Magistrate, Saidapet, Chennai and the same are pending. Whereas, the detaining authority has arrived at the subjective satisfaction that there is real possibility of the detenu coming out on bail in the ground case as well as in the adverse cases since in similarly placed cases bails are granted by Courts after a lapse of time. Whereas, the detaining authority has arrived at the subjective satisfaction that there is real possibility of the detenu coming out on bail in the ground case as well as in the adverse cases since in similarly placed cases bails are granted by Courts after a lapse of time. This according to the learned counsel appearing for the petitioner is bereft of particulars without cogent materials, which vitiates the impugned order of detention. Further, the Detaining Authority has arrived at the subjective satisfaction that there is very likely of the detenu coming out on bail as in similar case registered by P-6 Kodungaiyur Police Station Crime No. 863/2010 for the offence u/s. 341, 336,427, 397 and 506 (ii) IPC bail was granted to an accused in Crl. M.P. No. 12362/2010 by the learned Principal Sessions Judge, Chennai as well as in another similar case registered at V-5 Thirumangalam Police Station Cr. No. 381/2009 for the offence u/s. 147, 448, 384, 506(ii) IPC and 3(1)TNPP (D&L) Act, bail was granted to an accused by the learned Chief Metropolitan Magistrate, Egmore in Crl M.P. No. 1361/2009. The above two referred similar cases are not that of the Cases are not that of the cases registered on a ground case. That be so, the subjective satisfaction arrived at that there is real possibility of the detenu coming out on bail is a mere ipse dixit without any cogent materials. The learned counsel would add that admittedly, in this case, the bail applications filed in the adverse cases were also pending, when a bail application is pending, then there is no presumption that the detenu would come out on bail. No cogent materials are available before the detaining Authority to conclude/to apprehend that the detenu is likely to get bail in the ground case. The similar case particulars referred to and relied upon by the detaining authority where bail was granted, are not of same offences so as to compare that case with that of the detenu. If that be so, there is no imminent possibility of the detenu coming out on bail on the basis of the bail granted in the similar case. Hence, it is stated that the detaining Authority has passed the impugned detention order in total non-application of mind. If that be so, there is no imminent possibility of the detenu coming out on bail on the basis of the bail granted in the similar case. Hence, it is stated that the detaining Authority has passed the impugned detention order in total non-application of mind. In support of his contention, he relies on the following judgments reported of his contention he relies on the following judgments reported in (a) 2006 (1) MLJ (Crl.) 539, (T.V. Saravanan @ S.A.R. Prasanna Veknatachariar Chaturvedi v. State of Tamilnadu through secretary and another) (b) 2005 (1) CTC 577 (Velmurugan @ Velu v. The Commissioner of Police) and (c) 2012-2-L.W. (Crl.) 482 : 2012 (7) SCC 181 (Huidrom Konunkao Singh v. State Of Manipur). 4. Per contra, the learned Additional Public Prosecutor would vehemently oppose this petition and submit that the order of detention has been passed on cogent and sufficient materials only after taking note of the antecedants of the detenu and therefore the same cannot be interfered with at the instance of the petitioner. He also reads the particular portion of the detention order and submits that the subjective satisfaction was arrived at by the detaining authority only on relevant materials and hence there is no infirmity nor illegality in the order of detention warranting interference by this Court, Hence, he submits that the Habeas Corpus Petition does not merit any consideration and the same is liable to be dismissed. 5. We have heard the learned counsel for both sides with regard to the facts and citation. 6. Before adverting to the arguments of the learned counsel for both sides, we would like to reproduce the relevant portion of the impugned order of detention, on which much reliance has been placed on by the learned counsel appearing for the petitioner: "4. I am aware that Thiru. Albert is in remand in R-10 M.G.R. Nagar Police Station Crime Nos. 587/2013, 737/2013, and 1148/2013 and he has filed bail applications for R-10 M.G.R. Nagar Police Station Crime Nos. 587/2013 and 737/2013 before this Court of XXIII Metropolitan Magistrate, Saidapet, Chennai in Crl M.P. Nos. 2422/2013 and 2421/2013 respectively and the same are pending. He has moved bail application for R-10 M.G.R. Nagar Police Station Crime No. 1148/2013 before the Court of Principal Sessions, Chennai in Crl M.P. No. 7597/2013 and the same was dismissed on 04.07.2013. 587/2013 and 737/2013 before this Court of XXIII Metropolitan Magistrate, Saidapet, Chennai in Crl M.P. Nos. 2422/2013 and 2421/2013 respectively and the same are pending. He has moved bail application for R-10 M.G.R. Nagar Police Station Crime No. 1148/2013 before the Court of Principal Sessions, Chennai in Crl M.P. No. 7597/2013 and the same was dismissed on 04.07.2013. Again, he has moved a bail application for R-10 M.G.R. Nagar Police Station Crime No. 1148/2013 before the Court of Principal Sessions, Chennai in Crl. M.P. No. 7813/2013 and the same is pending. Further in a similar case registered at P-6 Kodungaiyur Police Station Crime No. 863/2010 registered under sections 34, 336, 427, 397 and 506(h)IPC bail was granted by the Court of Principal Sessions, Chennai, in Crl M.P. No. 12362/2010. Similarly in a case registered at V-5 Thirumangalam Police Station Crime No. 381/2009 under Sections 147, 448, 384 and 506(ii) IPC and3(1) TNPP (D&L) Act, bail was granted by the Chief Metropolitan Magistrate Court, Egmore, in Crl. M.P. No. 1361/2009 Hence, I infer that it is very likely of his coming out on bail in R-10 M.G.R. Nagar Police Station Crime Nos. 587/2013, 737/2013 and 1148/2013, since in similarly placed cases bails are granted by Courts after a lapse of time. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of public order. Further the 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.." 7. From the above it is clear that in the ground case in Crime No. 1148 of 2013 registered by R-10 M.G.R. Nagar Police Station the detenu had filed a bail application in Crl. M.P. No. 7597/2013 before the learned Principal Sessions Judge, Chennai and the same was dismissed on 04.07.2013. Again he moved another bail application in the ground case in Crl. M.P. No. 7813 before the learned Principal Sessions Judge Chennai and the same was pending as on the date of the passing of the detention order. As far as the adverse cases are concerned the detenu had filed bail applications in Crl. M.P. Nos. 2422/2013 and 2421/2013 before the XXIII Metropolitan Magistrate, Saidapet, Chennai and the same are pending. M.P. No. 7813 before the learned Principal Sessions Judge Chennai and the same was pending as on the date of the passing of the detention order. As far as the adverse cases are concerned the detenu had filed bail applications in Crl. M.P. Nos. 2422/2013 and 2421/2013 before the XXIII Metropolitan Magistrate, Saidapet, Chennai and the same are pending. The Detaining Authority has relied on similar cases to infer that the detenu would be granted bail in the ground case as well as the adverse case but the particulars of the similar case referred to and relied upon by him are not for the same offences as that of the ground case and adverse cases of the detenu, so as to compare and arrive at a conclusion that on the basis of the said similar case, the bail application filed by the detenu in the ground case, which is pending would also be considered. Therefore, the impugned order is passed on mere Ipse-dixit and the order of detention cannot be sustained in the eye of law. 8. In this connection it is useful to refer the judgments relied on by the learned counsel for the petitioner: "(a) In 2006 (1) MLJ (Crl) 539 (cited supra) wherein the Hon'ble Apex Court has held as follows: "The court has rejected the bail applications moved by the appellant and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The 'imminent possibility' of the appellant coming out on bail is mere ispe dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material whatsoever, there was no cogent material before 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." (b) In 2005 (1) CTC 577 (cited supra) it has been held as follows: "3...unless there is a clear expression by the detaining authority in the grounds of detention with reference to the imminent possibility of the detenu being released on bail by filing bail application the detaining authority would not choose to pass the detention order. In order to prevent the detenu from committing the acts, which would be disturbance to public order and public health, the detaining authority shall consider the materials and on the basis of subjective satisfaction that there is imminent possibility of the detenu being released on bail. The detaining authority may pass such an order under Tamil Nadu Act 14, of 1982. When such an essential requirement, namely. The imminent possibility of the detenu coming out on bail is absent, it has to be held that the order of detention is vitiated." (c) In 2012 (7) SCC 181 (cited supra) which reads thus:-- 12. In Rekha v. State of Tamil Nadu through Secretary to Govt. & Anr.; 2012-1-L.W. (Crl.) 641 : (2011) 5 SCC 244 , this Court while dealing with the issue held; "..In our opinion if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders. The bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the co-accused has been granted bail and his case, is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail.... A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored. In our opinion, there is a real possibility of release of 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 to his 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." (emphasis supplied). Thus, it is evident from the aforesaid judgment that it is not the similar case, i.e. involving similar offence. It should be that the co-accused in the same offence is enlarged on bail and on the basis of which the detenu could be enlarged on bail. Thus, it is evident from the aforesaid judgment that it is not the similar case, i.e. involving similar offence. It should be that the co-accused in the same offence is enlarged on bail and on the basis of which the detenu could be enlarged on bail. 14. In the instant case, admittedly. The said bail orders do not relate to the co-accused in the same case. The accused released in those cases on bail had no concern with the present case, merely because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail as the detenu in the instant case has not moved the bail application and no other co-accused, if any, had been enlarged on bail resorting to the provisions of act was not permissible therefore the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eyes of law." 9. It is a trite law that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of Constitutional values that is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Preventive detention is preventive and not punitive. When ordinary law of the land is sufficient to deal with, taking recourse to the preventive detention law is illegal. 10. In the light of the above facts and law, we have no hesitation in quashing the order of detention on the above mentioned grounds. Accordingly. The Habeas Corpus Petition is allowed and the impugned detention order in BDFGISSV No. 340/2013 dated 05.07.2013, passed by the second respondent is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. Appeal dismissed.