Palaniyammal vs The State of Tamil Nadu

K.N. Basha, J.—The Petitioner is the mother of the detenu. The Petitioner has come forward with this Habeas Corpus Petition seeking for the relief of quashing the detention order dated 25.05.2010, slapped on her son branding him as "Drug Offender" as contemplated under the Tamil Nadu Prevention of dangerous activities of Boot leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14/1982).

The learned Counsel for the Petitioner would raise two contentions namely:

(i) the detaining authority has mentioned in the detention order in respect of involvement of the detenu in only one case i.e. in Crime No. 245 of 2010 on the file of the Aravakurichi Police Station and there is absolutely no other reference about any other crimes registered against the petitioner to arrive at the conclusion that the detenu is a habitual offender and as such the impugned order is vitiated.

(ii) In the detention order at paragraph No. 5, it is stated that the detenu has not moved any bail application on the date of passing the impugned detention order. But the detaining authority has proceeded to state that there is a real possibility for the detenu to come out on bail without any materials available on record.

Per contra, the learned Additional Public Prosecutor would contend that there is no infirmity or illegality in the impugned detention order. It is contended that the detaining authority has specifically mentioned in paragraph No. 4 of the grounds of detention that the Petitioner was habitually possessing and selling intoxicated drugs mainly on the ground case. Therefore, it is contended that the detenu has been rightly branded as "drug offender". It is further contended that the detaining authority has also specifically mentioned in Paragraph No. 5 that though the Petitioner has not moved any bail application, he is likely to prefer a bail application and as such there is a real possibility for the detenu to come out on bail and as such it cannot be stated that the detaining authority has passed the detention order casually and mechanically without any subjective satisfaction.

We have given our careful and anxious consideration to the rival contentions put forward by either side and perused the impugned order of detention.

The perusal of the impugned detention order would reveal that there is a reference about the single case registered against the Petitioner on the file of the Aravakkurichi Police Station in Crime No. 245 of 2010 and there is absolutely no material available on record as indicated in the impugned detention order as well as in the booklet furnished to the detenu to indicate that the detenu was involved in any other crime number involving himself for the possession and selling of intoxicated drugs. Therefore, it is very clear that only on the basis of the implication of the detenu in a single case, the detaining authority has arrived at the conclusion that the detenu was a habitual offender and branded him as "drug offender".

The learned Counsel for the Petitioner rightly placed reliance on the decision of the Hon''ble Apex Court in R. Kalavathi v. State of Tamil Nadu and Ors. reported in (2006) 2 M LJ 374.

The Hon''ble Apex Court in the decision held hereunder:

"A person is said to be a habitual criminal who by force of habit or inward disposition is accustomed to commit crimes. It implies commission of such crimes repeatedly or persistently and prima facie there should be continuity in the commission of those offences."

"From one single transaction though consisting of several acts, a habit cannot be attributed to a person."

"There is also no material to justify the conclusion that the accused was habitually committing crime. There is no reference to any other crime. Therefore, the order of detention cannot be maintained."

The principle laid down by the Hon''ble Apex Court is squarely applicable to the facts of the present case. As in this case also, we have already pointed out that the detenu was implicated only in a single case and there is absolutely no material available on record either in the impugned detention order or in the booklet furnished to the detenu to the effect that the detenu is involved in any other crime number registered against him to brand him and to come to the conclusion that he is a "habitual offender" and thereafter as "drug offender". Therefore, we have no hesitation to hold that the impugned detention order is vitiated on the above said ground.

It is also rightly contended by the learned Counsel for the Petitioner that the detaining authority without any material has come to the conclusion that there is a real possibility of the detenu to come out on bail. It is pertinent to note that in paragraph No. 5 of the detention order, it is specifically stated by the detaining authority that the detenu has not moved any bail application in the case registered against him in Crime No. 245 of 2010 on the file of the Aravakurichi Police Station. It is seen that there is also no mentioning about any steps taken by the detenu or his relatives to move any such bail application and as such without any cogent material available on record, the detaining authority has proceeded to come to the conclusion that there is a real possibility of the detenu to come out on bail by filing a bail application.

At this juncture, it is relevant to refer the decision of the Hon''ble Apex Court in T.V. Saravanan alias S.A.R. Prasanna Venkatachariar Chaturvedi v. State, through Secretary and Anr. reported in 2006 (1) M LJ 539. The Hon''ble Apex court in the said decision held as hereunder:

"The Courts had rejected the bail applications moved by the Appellant and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The "imminent possibility" of the Appellant coming out on bail is mere ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail. The inference has to be drawn from the available material on record. In the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention.

The principle laid down by the Apex Court in the decision cited supra is squarely applicable to the facts of the instant case, as in this case also, as we have already held in the absence of any cogent materials available on record, the detaining authority has casually, mechanically and without application of mind has come to the conclusion that there is a real possibility for the detenu to come out on bail and as such, the impugned detention order is vitiated.

Accordingly, the detention order passed by the second Respondent in Cr.M.P. No. 16/2010 dated 25.05.2010 is hereby quashed and the detenu is set at liberty forthwith, unless his detention is required in connection with any other case.