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Judgment
Originally H.C.P. No. 791/95 came up for hearing before this Court. Learned Counsel appearing for the Petitioner submitted that there is
another H.P.C. No. 588 of 1995 which is similar to the present also pending before this Court. The learned Counsel requested that both the
petitions were taken up together since detenu is the same and she was detained under Act 14 of 1982. As per the direction of the Honourable.
The Chief Justice dated 17.7.1995, both petitions viz., H.C.P. 588 of 1995 and 791 of 1995 were posted before this Court for disposal.
H.C.P. No. 791/95 was filed by one Rajendran, This Rajendran is the brother of the detenu Nagammal. So also H.C.P. No. 588 of 1995 was
filed by one Masilamani who is also stated to be the brother of the said Nagammal. The said Nagammal was detained under order passed in
C3.D.0.197 of 1994 dated 13.8.1994 under Tamil Nadu Act 14/82 as Boot-legger by the District Collector and District Magistrate, North Arcot
Ambedkar District at Vellore.
When these petitions came up for hearing, the learned Counsel pleaded for a parole since the detenu gave birth to a child while she was in the
prison, on 28.3.1995. The birth of the child took place at Government Hospital, Vellore where she was admitted on 17.2.1995 and she was
discharged on 30.3.1995. According to the Petitioner she is anemic and weak and she could not provide proper milk to her child. It was also
submitted that there are no adequate facilities in the prison cell to maintain her child. According to the learned Counsel, detenu was kept in
inhumane condition and hence parole was required to her to save her child. A representation was made for parole on 14.4.1995 to the
Respondent but the parole was refused. In such circumstance, counsel for the Petitioner requested this Court to direct the Respondent to grant
parole to the detenu. At the same time the Petitioner also prayed for set the detenu at liberty on the above said grounds.
After hearing the learned Counsel appearing for the Petitioner, we directed the learned Additional Public Prosecutor to put this proposal to the
government for a favorable order. After consulting the Government, the learned Additional Public Prosecutor produced the order dated 26.7.1995
wherein the detenu was permitted to go on parole for a period of 18 days from 27.7.1995 to 13.8.1995. After this order was passed, the detenu
was released to go on parole on 27.7.1995 at 7:00 P.M. Thereafter she again returned to the prison on 28.7.1995 stating that she does not want
to avail of the parole. According to the Petitioner, the detenu does not want to avail of the parole order because only 13 days are left to complete
the period of detention, and therefore she would like to complete the period and go out of the prison once for all.
Finally when these petitions were heard on merits, the learned Counsel appearing for the Petitioners pressed into service only one ground viz.
that the Detaining Authority had not applied his mind to the likelihood or imminent possibility of detenue getting released on bail or the case being
over in her favour. The learned Counsel placed reliance on the decision of the Supreme Court reported in 1994 S.C.C. Cri. 354 in the case of
Ravadeneyta Ricardo Agustin v. Government of Delhi. The learned Counsel further placed reliance upon a recent decision of this Court reported in
1995 1 L.W. (Cri) 65 in the case of Srinivasan v. The District Magistrate and Collector Thiruvannamalai Sambuvarayar Dist. Thiruvannamalai and
another, rendered by this Court in order to support the above said contentions Learned Counsel further pointed out that the decision reported in
1995 1 L.W. (Cri) 65 cited supra, was also followed by this Court in a subsequent decision reported in 1995 1 L.W. (Cri.) 149 in the case of
Vinayagam v. The District Magistrate and collector of N.A. Ambedkar District, Vellore and another.
On the other hand, the learned Additional Public Prosecutor placing reliance upon the decision of the Supreme Court in Noor Salman Makani
Vs. Union of India and others, submitted that what is stated in para 5 of the detention order would be sufficient to comply with the requirements as
per the decision of the Supreme Court cited supra. According to the learned Counsel, it is not necessary that the Detaining Authority should state
that there is likelihood or imminent possibility of the detenu getting released on bail or the case being over in her favour she would again indulge in
the prejudicial activities against die State. Therefore, according to the learned Additional Public Prosecutor if the words ''likelihood or imminent
possibility of the detenu getting released on bail'' were absent that would not render the detention order nugatory on the ground that the Detaining
Authority had not applied his mind.
We have heard both the learned Counsel appearing for the Petitioner as well as the learned Additional Public Prosecutor. In the detention order
dated 13.8.1994 in para 5 it is stated as under:
I am aware that Smt. Nagammal is in remand and there is possibility that she may come out on bail for the offences u/s 4(1)(i) Tamil Nadu
Prohibition Act and 328 I.P.C. by filing bail application in the court. If she comes out on bail, she will indulge in further activities which will be
prejudicial to the maintenance of public order. Further the recourse to normal criminal law would not have the desired effect of effectively
preventing her from indulging in activities prejudicial to the maintenance of public order and therefore, I am of the view that there is a compelling
necessity to detain her with a view to preventing her from acting in any manner prejudicial to the maintenance of public order. However, I am
satisfied that the activities of Smt. Nagammal warrant her detention under the Tamil Nadu Act 14 of 1982.
No doubt in the said order the words ""likelihood"" or ""imminent possibility of the detenu getting released on bail"" or ""the case being over in her
favour"" does not find a place. This would go to show that the Detaining Authority has not applied his mind as per the decision of this Court
rendered in 1995 1 L.W.(Cri.) 65 cited supra. It is significant to note that in the decision rendered by this Court in 1995 L.W.65 cited supra, this
Court considered the decision of the Supreme Court rendered in 1994 SCC (Cri 354 in the case of Noor Salman Makani Vs. Union of India and
others, . It is only after perusing the judgments rendered by the Supreme Court in the above cited decisions, this Court in 1995 L.W.(Cri) 65 came
to the above said conclusion.
According to the facts arisen in the present case, no bail petition was filed by the detenu so far. Now the detention period to be served is short
of hardly 6 or 7 days. The fact also remains that the detenu gave birth to a child during the detention period and she is anxious to look after her
child by providing proper food. It was also represented that she lost her husband and there is no possibility in the near future to indulge in such
activities which will be prejudicial to the maintenance of public order. Considering all these factual aspects, especially the technical flaw found in the
detention order as pointed out by this Court in the decision reported in 1995 1 LW (Cri.) 65 we are of the opinion that this is a fit case for
releasing the detenu forthwith.
Accordingly, this H.C.P. No. 588 of 1995 is allowed and the impugned order of detention is set aside and the detenu is set at liberty forthwith
unless she is required for any other case.
Since the impugned detention order is set aside in H.C.P. No. 588 of 1995, H.C.P. No. 791 of 1995 does not survive for consideration and
therefore, it is dismissed.