Angel v. Principal Secretary to Government, State of Tamilnadu, Home, Prohibition and Excise Department
2017-05-23
C.V.KARTHIKEYAN, M.V.MURALIDARAN
body2017
DigiLaw.ai
ORDER : M.V. Muralidaran, J. The petitioner is the wife of the detenu. The detenu has been detained by the second respondent by order dated 29.02.2017, holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition. 2. We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondents. We have also perused the records produced by the Detaining Authority. 3. The contention raised by the learned counsel appearing for the petitioner is that the detenu was arrested on 04.01.2017. It is also stated by the learned counsel for the petitioner that it is stated in the Detention Order that there is a real possibility of the detenue coming out on bail by filing bail application without enclosing other relevant documents is a vitiating circumstance and the Detention Order passed cannot be sustained. 4. The learned Additional Public Prosecutor, on basis of the counter affidavit filed by the 2nd respondent, submitted that the detaining authority has rightly appreciated the facts in the grounds of detention. 5. We have considered the said submissions. 6. This Court in HCP (MD)No.979 of 2011 dated 14.12.2011, considered the very issue in pagragrah Nos.13 and 14 and held thus:- "13. Even though the Detaining Authority had stated, in the grounds of detention, that there is an imminent or a real possibility of the detenu coming out on bail, there is nothing available on record to substantiate such a claim. Unless, there are sufficient and cogent materials for the Detaining Authority to arrive at his conclusion that there is an imminent or a real possibility of the detenu coming out on bail and indulging in activities, which would be prejudicial to the maintenance of public order, the conclusion of the Detaining Authority would be a mere ipse dixit and as such, the conclusion arrived at by the Detaining Authority cannot be held to be valid in the eye of law. 14. Further, unless, the similar cases referred to by the Detaining Authority, in the grounds of detention, are comparable with the cases relating to the detenu, in all aspects, it would not be open to the Detaining Authority to arrive at his conclusion that the detenu would be enlarged on bail.
14. Further, unless, the similar cases referred to by the Detaining Authority, in the grounds of detention, are comparable with the cases relating to the detenu, in all aspects, it would not be open to the Detaining Authority to arrive at his conclusion that the detenu would be enlarged on bail. In the present case, it has not been shown that all the relevant materials relating to the similar cases, referred to by the Detaining Authority had been furnished to the detenu, in order to enable him to make an effective representation against the detention order. The failure of the Detaining Authority to furnish all the materials would, no doubt, cause substantial prejudice to the detenu, resulting in the failure on the part of the Detaining Authority in following the mandate, enshrined in Clause (5) of the Article 22 of the Constitution of India." 7. In a similar case, bail has been granted and the detenu is likely to be released on bail. There is no material available before the detaining authority to arrive at such a conclusion. The Supreme Court in the decision reported in 2011 (4) SCC 260 (Rekha v. State of Tamil Nadu) held that in the absence of material particulars in similar cases the detaining authority shall not rely on the said statement made by the sponsoring authority. 8. In the Judgment above referred also the Supreme Court and this Court considered the very issue. It has not been shown that the relevant materials relating to similar case referred to by the detaining authority has been furnished to the detenu in order to enable him to make an effective representation against the Detention Order. The failure of the detaining authority to furnish all the materials would cause substantial prejudice to the detenu, resulting in the failure on the part of the detaining authority in following the mandate, enshrined in Clause (5) of the Article 22 of the Constitution of India. 9. In the light of the said undisputed facts and the decisions of this Court and the Hon'ble Supreme Court stated supra, the Detention Order passed against the detenu is liable to be set aside. Accordingly, the Detention Order dated 29.02.2017 is set aside and the Habeas Corpus Petition is allowed. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.