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Judgment
P. Sathasivam, J.—The petitioner challenges the order of detention dated 09.06.2005, detaining his friend by name Perumal 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).
Heard learned counsel for the petitioner and learned Government Advocate for the respondents.
Apart from the grounds raised in the affidavit filed in support of the Habeas Corpus Petition, the petitioner has also raised additional grounds by
filing HCMP No.4 of 2006. By order dated 17.01.2006, this Court allowed the said Petition.
Learned counsel appearing for the petitioner, by drawing our attention to the averments in paragraph No.4 of the grounds of detention, would
submit that on the date of passing of the detention order, ie., on 09.06.2005, bail petition filed by the detenu was dismissed by the learned
Principal Sessions Judge, Chennai, in Crl.M.P. No.4803 of 2005, and this fact was not referred to and considered by the Detaining Authority. In
other words, according to him, in the light of the averments made in the bail petition, the Detaining Authority ought to have considered the same
and failure on the part of the Authority in doing so vitiates the impugned order of detention.
In the light of the said contention, we verified the averments made in paragraph No.4. In the said paragraph, the Detaining Authority has stated
that the detenu, viz., Perumal, is in remand in H1 Washermenpet PS Cr.No.584/2005 and he has not moved any bail petition so far. After saying
so, he further observed that there is imminent possibility of his coming out on bail in the said case by filing bail application before the Sessions
Court or Higher Courts since in similar cases bails are granted by the Sessions Court or Higher courts after a lapse of time.
In the additional grounds, it is stated that though the Detaining Authority has expressed that the detenu has not moved any bail application until
then, in fact, the detenu moved a bail application before the Principal Sessions Judge, Chennai, in Crl.M.P. No.4803 of 2005 on 06.06.2005.
According to the counsel, notice to the Public Prosecutor was ordered on the same date and ultimately on 09.06.2005, the bail application was
dismissed by the learned Sessions Judge. It is further contended that inasmuch as the Public Prosecutor was aware of the fact of filing of the bail
application even on 06.06.2005, it is incumbent on the part of the Detaining Authority to consider the averments in his bail application. On the
other hand, according to the counsel, the Detaining Authority, without verifying the records, has concluded that the detenu has not moved any bail
application till the date of detention order. This, according to the counsel, shows nonapplication of mind on the part of the Detaining Authority.
In support of the above claim, learned counsel for the petitioner heavily relied on a Division Bench decision of this Court reported in N.
Kumaresan Vs. State, .
On the other hand, learned Government Advocate has brought to our notice that as per the judgment of the Supreme Court reported in 199 2
SCC 1 (Abdul Sathar Ibrahim Manik v. Union of India), even non-reference to the bail application or the order passed thereon does not amount
to suppression of relevant material. According to him, as per the said decision, the question of non-application of mind and satisfaction being
impaired does not arise as long as the Detaining Authority was aware of the fact that the detenu was in actual custody. By pointing out conclusion
Nos.(3) and (4) in paragraph No.12 of the said decision, learned Government Advocate contended that inasmuch as the Detaining Authority was
aware of the relevant fact, viz., the detenu was in actual custody, the contention raised by the learned counsel for the petitioner is liable to be
rejected.
In addition to the above submission, learned Government Advocate has also relied on the statement of the Detaining Authority/ Commissioner of
Police, Greater Chennai, in the form of counter affidavit dated 16.01.2006. In paragraph No.9, the Commissioner of Police has specifically stated
thus:-
... no bail application was placed before me at the time of passing the order of detention and as per the judgment of the Apex Court non placing of
the pending bail application will not vitiate the order of detention.
Learned Government Advocate has also relied on the supporting affidavit, dated 16.01.2006, filed by the Sponsoring Authority. In the said
affidavit, in paragraph No.4, the Inspector of Police, Law and Order, H1 Washermenpet Police Station, Chennai City, has specifically stated as
follows:-
... it is submitted that the said bail application moved before the Hon''ble Principal Sessions Court, Chennai, in Crl.M.P. No.4803/2005 is dated
6th June 2005. I have not received any information about the filing of the bail application from the office of the City Public Prosecutor till the filing
of the affidavit i.e. 6th June 2005. I received the information about filing of the bail application only on 9.6.2005 and on the same day itself the
order of detention detaining him under Tamil Nadu Act 14 of 1982 was also passed. "" By drawing our attention to the above information and the
proposition laid down by the Supreme Court in Abdul Sathar''s case, learned Government Advocate submitted that the contention raised by the
learned counsel for the petitioner is liable to be rejected.
Before going into the proposition laid down by the Supreme Court and the factual information, let us consider the Division Bench decision of
this court reported in N. Kumaresan Vs. State, . It is true that in the said decision, in paragraph No.4, the Division Bench, after noting that the
Detaining Authority, in spite of rejection of the bail petition, made an incorrect factual statement that no bail application was filed till the order was
passed, came to the conclusion that the approach of the Detaining Authority in taking decision in casual manner and passing the detention order
cannot be sustained. We perused the factual details from the said Division Bench decision. It is not in dispute that the proposition laid down by the
Supreme Court in Abdul Sathar''s case has not been placed before the said Division Bench. In this regard, it is useful to refer the conclusion of the
Hon''ble Supreme Court in sub-para Nos.(3) & (4) of paragraph No.12, which reads as under:-
(3) If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does
not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as
the detaining authority was aware of the fact that the detenu was in actual custody.
(4) Accordingly the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu''s right of being
afforded a reasonable opportunity guaranteed under Article 22(5) when it is clear that the authority has not relied or referred to the same.
It is clear from the above decision that if the Detaining Authority was aware of the fact that the detenu was in actual custody, merely because the
authority has not considered the bail application moved by the detenu or the ultimate order passed by the court concerned, dismissing his bail
application, it would not amount to suppression of relevant material.
In the case on hand, though, in paragraph No.4, the Detaining Authority has stated that the detenu has not moved any bail petition until then, it
is clear from the counter affidavit of the Detaining Authority and the supporting affidavit of the Sponsoring Authority that the Detaining Authority
did not possess the information about filing of the bail application and the order of the Principal Sessions Judge on 09.06.2005. In the light of the
proposition laid down in the above referred Supreme Court decision and in view of the factual information furnished by the Detaining Authority as
well as the Sponsoring Authority and taking note of the fact that the decision of the Supreme Court was not brought to the notice of the Division
Bench, which decided the case law reported in N. Kumaresan Vs. State, , we are of the view that the said decision is not applicable to the case on
hand. Likewise, though learned counsel for the petitioner has relied on the decisions reported in (2004) M.L.J. 418 (Baseer v. The State of Tamil
Nadu) and 2005 M.L.J. 923 (Sathish v. State of Tamil Nadu), on going through the factual details and in the light of the above discussion, we are
of the view that those decisions are not helpful to the case of the petitioner.
In the light of our foregoing discussion and of the fact that on the date of passing of the detention order, the Detaining Authority was very well
aware of the relevant fact, viz., that the detenu was in actual custody, which was not in dispute, we are satisfied that the Detaining Authority, taking
note of all the relevant aspects, particularly the past activities of the detenu and with a view to maintain public order, which is paramount, has rightly
passed the impugned order of detention.
We do not find any error or infirmity in the impugned detention order for interference. Habeas Corpus Petition fails and the same is dismissed.