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Judgment
S. Jagadeesan, J.—Since the order of detention has been passed against both the detenus arising out of a common ground case, at the request of the counsel for both sides, both the cases were taken up for common disposal.
The detenus are the petitioners who had been detained as ''Goonda'' as contemplated under the Tamil Nadu Act 14 of 1982. The detaining authority, the second respondent has passed the impugned order of detention dated 10.5.99. The detenu in H.C.P.943/99 Mr.Madaswamy came to the adverse notice of the authority in respect of three cases whereas the detenu in H.C.P.944/99 Shanmugasun-daram also came to the adverse notice in respect of three cases. The ground case is that one Angappan had lodged a complaint against both the detenus about ten months back about their threatening. The said case is pending trial. Whilesoon 19.4.99 at 9.00 a.m. when the complainant Mr.Angappan was proceeding near Medaipillaiyarkovil, Srivaikuntam, both the detenus way laid him and questioned him as to whether he is going to give evidence against them and further said only if he is left to live then only he can give the evidence and Madaswamy, the detenu in H.C.P.943/99 took out an aruval and aimed to cut the said Mr.Angappan. As the complainant receded the cut fell on the soda bottles of the petty shop owned by one Subbiah. The soda bottles exploded. Immediately Shanmugasundaram, the detenu in H.C.P.944/99 caught hold of the complainant''s right hand and twisted. The complainant cried loudly and tried to escape. Bodi the detenus took out a country bomb and threw at the complainant which fell down on the road and exploded. On seeing the happening, the public passing through the area and others who were waiting near the bus stop started to run scatterly out of fear. The shop keepers closed their shops. The traffic came to a stand still. Shanmugasundaram the detenu in H.C.P.944/99 took a soda bottle from the petty shop and threw the same at the complainant. It fell on the road and exploded into pieces. When the complainant ran away from the clutches of the detenus they shouted saying that he might have escaped on that day but one day or other they would kill him. The complainant gave a complainant in Srivaikundam police station which was registered as Cr.No.253/99 for offences u/s 341,307, 427 and 506(ii) I.P.C. and under Sections 3 and 5 of the Explosive Substances Act. The Inspector of Police took up further investigation by visiting the scene of occurrence, preparing the observation mahazar, seizing of some of the material objects at the scene of occurrence and recording of the statement of witnesses. Both the detenus were arrested on the same day and produced before the Judicial Magistrate, Srivaikundam and remanded to custody. The sponsoring authority submitted a proposal to the detaining authority for the preventive detention of both the detenus under the Tamil Nadu Act 14 of 1982. Having satisfied the need for such detention of the detenus, the detaining authority had passed the impugned order of detention which is now being challenged in these H.C.Ps.
Mr. S. Gopinath, the learned Senior Counsel on behalf of the detenus contended that the sponsoring authority in his affidavit had stated that the detenus were arrested on 19.4.99 and they have been remanded to judicial custody till 17.5.99. The order of extension of remand upto 17.5.99 was not placed before the detaining authority and as such mere is no material for the detaining authority to satisfy himself that the detenus were in custody on the date of the order of detention. Further the statement in the affidavit of the sponsoring authority cannot be taken as a valid one; especially when the statement is not a true and correct one. It is stated in the affidavit that the detenus were produced on 19.4.99 before the Judicial Magistrate and they were duly remanded and lodged in Sub-Jail, Srivaikundam as remand prisoners upto 17.5.99. Usually the remand will be granted only for 15 days and not more than that. If the statement in the affidavit of the sponsoring authority is to be taken as it is, then it would mean that the remand period is for nearly one month which cannot be accepted and hence on this ground the order of detention is liable to be set aside.
We carefully considered the above submission of the learned senior counsel for the petitioner. It is true that the sponsoring authority has stated in his affidavit as follows:-
I also submit that Thiru Madasamy was arrested on 19.4.99 and produced before the Judicial Magistrate, Srivaikuntam on the same day and he was duly remanded and lodged in Sub-Jail, Srivaikuntam as a remand prisoner upto 17.5.99 for which copies of documents are enclosed.
The same is stated in respect of the detenu Shanmugasundaram. The booklet at page 131 contains the requisition for remand dated 19.4.99. At page 133 the remand order is available whereby the detenus were remanded upto 3.5.99. At page 135 the requisition for the extension of remand for another 15 days has been made on 3.5.99. The sponsoring authority has filed the affidavit on 7.5.99. Hence the statement with regard to the extension of remand granted on 3.5.99 had been given from his knowledge. Virtually the statement given in the affidavit is a combined statement in respect of the first remand upto 3.5.99 and the extension of remand upto 17.5.99. Merely because the sponsoring authority has not mentioned the first remand and the further extension separately, it cannot be said that the statement of the sponsoring authority in the affidavit that the detenus were remanded till 17.5.99 cannot be accepted. The remand particulars are necessary for the detaining authority to satisfy himself with regard to the custody of the detenus on the date of the order of detention. In this case, the sponsoring authority himself has furnished in the affidavit that the detenus are under remand upto the period 17.5.99 and hence it is unnecessary that the certified copy of the extension of remand is essentially to be produced before the detaining authority to arrive at the subjective satisfaction. More over in the grounds of detention in respect of each of the detenus at page 4 it has been separately stated that the detenus were arrested on 19.4.99 and were produced before the Judicial Magistrate, Srivaikundam on 19.4.99 and remanded to judicial custody till 17.5.99. This is based upon the statement of the affidavit of the sponsoring authority. When the petitioners did not send any representation disputing the statement of fact extracted in the grounds of detention with regard to the period of remand, we do not find any infirmity on the part of the detaining authority in accepting the statement of the sponsoring audiority to satisfy himself that the detenus were in custody on the date of the order of detention. Hence we do not find any merits in the said contention, of the learned senior counsel for the detenu.
The next ground urged by the learned senior counsel for the petitioners is that in paragraph 4 of the grounds of detention the detaining authority has stated that there is possibility of the detenu filing bail application for the ground case and for the preamble cases and being enlarged on bail by the criminal court shortly and he is also aware that in such cases bail is granted after the lapse of some time. The detaining authority must be satisfied with regard to the imminent possibility of the detenus coming out on bail. The mere possibility of filing bail application and coming out on bail would not amount to subjective satisfaction of the detaining authority and as such the order of detention is liable to be set aside.
The learned senior counsel relied upon the judgment reported in Rivadeneyta Ricardo Agustin v. Government of Delhi (1994 SCC (Cri)354) wherein the learned Judges in paragraph 8 have held that the statement that there is "possibility" of the detenu''s release in case he moves a bail petition would not amount to the subjective satisfaction of the detaining authority that the petitioner was likely to be released that the release was imminent because the statement neither mentions mat such release was likely or that it was imminent.
On the contrary, the learned Public Prosecutor relied upon the judgment reported in Veeramani v. State of Tamil Nadu (1994 SCC (Cri) 482) where the learned Judges have held in paragraph 8 that the court has to mainly see whether there was awareness in the mind of the detaining authority that the detenu is in custody and that he had reason to believe that he is likely to be released.
Hence in this case we have to consider as to whether the statement made in the grounds of detention would reveal the awareness of the detaining authority about the imminent or likelihood of the detenu coming out on bail warranting the impugned order of detention.
The detaining authority in paragraph 4 has stated as follows:
I am aware that Thiru Madasamy has been remanded to judicial custody by Judicial Magistrate, Srivaikundam from 19.4.99 till 17.5.99. He is a remand prisoner lodged in the Sub-Jail, Srivaikun-tam. I am aware that he has filed bail application in Cr.No.250/99, 245/99 and 253/99 in Cr.M.P.No.1776, 1777 and 1778 in the court of sessions, Thoodiukkudi on 28.4.99. It was dismissed on 6.5.99. But there is possibility of his filing bail application for this case and for the preamble cases and being enlarged on bail by the criminal court shortly. I am also aware that in such cases bail is granted after lapse of some time and if the individual is let to remain at large, he is likely to indulge in such further prejudicial activities in future as well.
From the above statements it is clear diat me detenus have moved for bail and the bail petition was dismissed still the detaining audiority is aware that diere is possibility of the detenu filing the bail application and being enlarged on bail by the criminal court. He is further aware in cases of similar offences the bail is granted after lapse of some time. This shows not only of the awareness of the detenus being in remand but his subjective satisfaction of the likelihood of the detenus coming out on bail by filing bail application. Hence it cannot be said that there is no awareness of the detaining audiority that the detenus are likely to come out on bail. Hence the non-mentioning of the word ''imminent'' will not vitiate the impugned order of detention; especially when the detaining authority has satisfied about the possibility of the filing of the bail application by the detenus and the possibility of the detenus coming out of bail considering the nature of the offences.
More over, the detenus being conversant with the Tamil language, it is worthwhile to refer to the Tamil translation of the grounds of detention which is as follows:
In the Tamil translation it is clearly stated there is imminent possibility for. the detenu filing the bail application once again and there is more possibility of the detenu coming out on bail immediately. When in the Tamil translation it has been clearly stated tht there is imminent possibility of filing bail application and coming out on bail, it is not open to the learned senior counsel for the detenu to make capital out of me formation of the sentence in the English version of the grounds of detention.
The last ground of attack by the learned senior counsel for the detenus is that the detaining authority has referred to the filing of the bail applications by the detenus and the dismissal of the same in paragraph 4 of the grounds of detention. The particulars with regard to the filing of the bail applications and dismissal of the same were neither mentioned in the affidavit of the sponsoring authority nor were furnished in the booklet submitted to the detaining authority. Hence mere is absolutely no material before the detaining authority while passing the order of detention about the filing of the bail application by the detenus and the dismissal thereon and hence the impugned order of detention is vitiated by extraneous consideration.
In this regard it is worthwhile refer to the judgment of the Supreme Court reported in Abdul Sathar Ibrahim Manik v. Union of India (1992 SCC (Cri.) l) where in page 17 the learned Judges have held as follows:
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.
The non-placement of the bail application as well as the order of dismissal thereon definitely will not vitiate the impugned order of detention on the basis of the above referred judgment. As contended by the learned senior counsel for the petitioners, it is yet to be considered as to whether the mentioning of the bail application and the dismissal thereon by the detaining authority would amount to extraneous consideration which would vitiate the order of detention.
The Supreme Court in the case reported in Pushpa v. Union of India (1979 SCC (Crl.) 1015) has held as follows:
The last contention is that an incorrect belief entertained by the detaining authority that the detenu was a Pakistani national, unwarranted in the facts and circumstances of the case, misguided the detaining authority in making the detention order, the decision being influenced by an extraneous, irrelevant and incorrect consideration which would vitiate the order of detention. There is a serious dispute between the parties about the nationality of the detenu. The detenu claims that he is an Indian national while the respondents treat him as a foreigner. It also transpires from the record that the detenu applied for conferment of Indian citizenship which request has been negatived more than once. That apart, the record does not show that the detaining authority was influenced by the fact that the detenu is a foreigner. If there was material to show that the mind of the detaining authority was influenced by the fact that the detenu is a foreigner, a question would arise whether this fact is relevant in coming to the conclusion whether it is necessary to detain the detenu for preventing certain activities alleged against him. But there is nothing to show that the question of status of the detenu whether he is an Indian citizen or a foreigner has at all influenced the mind of the detaining authority in passing the impugned order of detention.
From the above passage, it is clear that only if the detaining authority was influenced by the fact that the bail application had been filed and the same was dismissed in order to satisfy himself to pass the impugned order of detention, then only the impugned order can be said to have been vitiated by the consideration of the extraneous materials. A perusal of paragraph 4 of the grounds of detention is clearly revealed that the detaining authority has made a passing reference with regard to the filing of the bail application by the detenus and dismissal thereon. It is further clear that there is nothing on record to show that the detaining authority was influenced by such fact of filing of the bail application and dismissal thereon to pass the impugned order of detention. The impugned order of detention had been passed only on the basis of the satisfaction of the detaining authority regarding the involvement of the detenus in the ground case and the possibility of filing the bail application and the likelihood of coming out on bail and the likelihood of indulgence in future in the occurrences affecting the public order. Hence we are of the opinion that the mentioning of filing of the bail applications by the detenus and the dismissal thereon cannot be said to have influenced the detaining authority in passing the impugned order of detention and as such the impugned order of detention cannot be said to have been vitiated by any extraneous consideration.
Accordingly the H.C.Ps are dismissed.