Gowri vs The Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department and The District Collector and District Magistrate

M. Chockalingam, J.—This Petition is brought forth by the mother of the detenu challenging an order of the Second Respondent made in

B.D.F.G.I.S.S.V. No. 42/2010 dated 28.7.2010 whereby the detenu Kannan S/o Murugesan was ordered to be detained as a Goonda under the

provisions of Act 14 of 1982.

The Affidavit filed in support of the Petition and the grounds of detention are looked into. The Court heard the learned Counsel on either side 3.

Pursuant to the recommendations made by the Sponsoring Authority that the detenu is involved in three Adverse cases viz., (1) Thiruporur P.S.,

Cr. No. 403/2010 under Sections 147, 148, 294(b), 325 and 302, IPC (2) Thiruporur P.S., Cr. No. 404/2010 under Sections 506(ii), IPC r/w 2

and 3 of TNPPDL Act (3) Thiruporur P.S., Cr. No. 405/2010 under Sections 147, 148, 323, 506(ii), IPC r/w 2 & 3 of TNPPDL Act and a

Ground case registerede by Thiruporur P.S., Cr. No. 406/2010 under Sections 341, 294(b), 427, 384, 307, 506(ii), IPC for an occurrence that

took place on 12.6.2010, and the detenu was arrested on 13.6.2010, the Detaining Authority after scrutiny of the materials placed, was of the

opinion that the detenu should be detained under the said Act since his activities were prejudicial to the maintenance of public order, and hence,

passed the order which is the subject matter of challenge before this Court.

Advancing the arguments on behalf of the Petitioner learned Counsel raised two points which according to him would be suffice to set aside the

detention order. Learned Counsel would submit that the detenu was shown arrested in all the Adverse cases on 10.6.2010 and in the Ground

Case on 12.6.2010. The remand orders in all the Adverse cases are relevant documents and also relied upon documents but the grounds of

detention does not reflect about the remand orders in the Adverse cases. The copies of those documents were actually not supplied. Thus, the

non-supply of the relied upon documents would vitiate the detention order. Learned Counsel would further submit that though the authority has

observed that the detenu would indulge in such activities in future, he has not even stated that there was real or imminent possibility or likelihood of

the detenu coming out on bail which shows the non-application of mind on the part of the authority. Under such circumstances, on the above

grounds, the detention order is vitiated and it has to be set aside.

The Court heard the learned Additional Public Prosecutor on the above contention.

As could be seen from the available materials, the Detaining Authority has made the order of detention terming the detenu as a Goonda, on the

strength of the materials placed before him pertaining to three Adverse cases and one Ground case as referred to above, and has recorded the

subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order. The detenu was shown arrested in all the

Adverse cases on 10.6.2010 and in the Ground case on 13.6.2010 and the remand orders in all the Adverse cases are relevant documents and

they are also relied upon documents but the grounds of detention does not reflect about, the remand orders in the Adverse cases. The copies of

those documents were actually not supplied. The non-supply of the relied upon documents would vitiate the detention order. Further, though the

authority has observed that the detenu would indulge in such activities in future, he has not even stated that there was real or imminent possibility or

likelihood of the detenu coming out on bail which shows the non-application of mind on the part of the authority. There was an occasion for the

Full Bench of this Court to consider the same in Kalaiselvi, G. v. The State of Tamil Nadu 2007 (5) CTC 657, wherein it has been held as follows:

From the reading of the aforesaid decisions, it is clear that the conclusion of the Detaining Authority that there is imminent possibility of the

detenu being released on bail must be based on cogent materials and not on the mere ipse dixit of the Detaining Authority. As has been observed

by the Supreme Court, the question as to whether there is possibility of being released on bail depends upon several factors, such as nature of

offence, the stage of the investigation, the availability of statutory bail as envisaged u/s 167(2), Proviso of Code of Criminal Procedure Even though

it is not possible nor desirable to enumerate the circumstances in which bail is likely to be granted, one can venture to say that it is very rare for a

Court of law to grant bail during pendency of the investigation when there is allegation of commission of serious offence, such as punishable u/s 302

or Section 395, I.P.C. On the other hand, it is also safe to conclude that in offences relating to prohibition laws or white collar offences, the Courts

usually grant bail notwithstanding the fact that investigation may be still going on. Similarly, when a charge-sheet is not filed within the statutory

period contemplated, notwithstanding the seriousness of the allegation, on the expiry of the period, the accused got a right to be released on bail.

In the present case, the conclusion of the Detaining Authority, as already been extracted. We have searched for the materials on record in

support of such conclusion and we find none. There was no imminent possibility of the detenu obtaining statutory bail as hardly 60 days had

elapsed form the date of the arrest and the investigating agency had more than a month for completion of the investigation. The alleged offence u/s

302, IPC cannot be characterised as an offence of routine nature which would prompt any Court to grant bail even before completion of

investigation. Top of it, the Bail Application had in fact been rejected by the Sessions Judge and no other Bail Application vas pending. In such a

factual situation, in our considered opinion, the decision of the Supreme Court in T.V. Saravanan @ S.A.R. Prasana Venkatachaariar Chaturvedi

Vs. State through Secretary and Another, , is squarely applicable and it can be said that the conclusion of the Detaining Authority is mere ipse dixit

and there is hardly any material in support of such conclusion. On this score also, the detention order is liable to be quashed.

In view of the above, this Court is of the considered opinion that it is a fit case where it could be stated that the subjective satisfaction recorded

by the authority was without sufficient or cogent material. Further, there is nothing in the detention order to indicate that he arrived at the subjective

satisfaction before passing the detention. Under such circumstances, the Court is of the opinion that on the above grounds, the detention order is

infirm and the same has to be set aside.

In the result, this Habeas Corpus Petition is allowed setting aside the order of the Second Respondent, and the detenu is directed to be set at

liberty forthwith unless his custody/detention is required in connection with any other case.