Chelladurai vs State of Tamil Nadu and The Commissioner of Police

S.J. Mukhopadhaya, J.—The petitioner challenges the order of detention dated 17.2.2009 passed by the Commissioner of Police,

Tiruchirappalli City made in Proceedings C.P.O./T.C./I.S./D.O. No. 10/2009 in detaining him as a ''Goonda'' under the Tamil Nadu Prevention of

Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers

and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982).

According to the petitioner, there was no material before the detaining authority to come to a conclusion that there is a real possibility of the

detenu coming out on bail by filing bail application in the case.

In reply, the learned Additional Public Prosecutor for the State relied on the Supreme Court decision in Senthamilselvi v. State of Tamil Nadu

and Anr. (2006) 3 SCC (Crl) 50 and submitted that even in that case, no bail application was filed, but the Court observed that the detaining

authority can independently come to a definite conclusion that there is a real possibility of the detenu coming out on bail by filing an application

before the Court of competent jurisdiction.

We heard the learned Counsel for the parties. In the case of Senthamilselvi v. State of Tamil Nadu and Anr. (2006) 3 SCC (Crl) 50, a similar

question fell for consideration as to whether the detaining authority would have inferred that there was a possibility of the detenu being released on

bail even in the absence of bail application filed by the detenu. In the said case, the Supreme Court observed that whether prayer for bail would be

accepted depends upon the circumstances of each case and no hard-and-fast rule can be applied, held, ""the only requirement is that the detaining

authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released

on bail cannot be ipse dixit of the detaining authority. On the basis of materials before him, the detaining authority came to the conclusion that there

is likelihood of the detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be

interfered with."" Similar was the observation of the Supreme Court in the decision in A. Geetha v. State of Tamil Nadu and Anr. (2006) 3 SCC

(Crl) 324.

In the present case, admittedly, the detenu had not moved any bail application. There may be a possibility of his coming out on bail by filing bail

application in the case in which he was made an accused. If he comes out on bail, he may indulge in activities which may be prejudicial to the

maintenance of public order. But there is no material on the record to come to a definite conclusion that there is a real possibility of the detenu

coming out on bail by filing bail application. If some material would have been available like grant of bail to a co-accused in the other case or that

he has already signed Vakalat to prefer bail, though not yet filed, one can understand that there are some materials on the record to come to a

definite conclusion. In the absence of any such material on record, we are of the view that the conclusion of the detaining authority that there is a

real possibility of the detenu coming out on bail is ipse dixit, not based on material, and shows the non-application of his mind. Hence the detention

order is liable to be quashed.

Accordingly, the detention order passed by the second respondent detaining the detenu, Chelladurai, son of Ganesan, made in

C.P.O./T.C./I.S./D.O. No. 10/2009 dated 17.2.2009, is quashed and the habeas corpus petition is allowed. The above named detenu is ordered

to be set at liberty forthwith, unless his custody is required in any other case.