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Judgment
S. Rajeswaran, J.—Challenge is made to the order of detention passed by the second respondent vide Proceedings in Memo No. 2123/BDFGISSV/2013 dated 30.12.2013, whereby the petitioner/detenu herself, iz., Pallavi @ Jamuna @ Yamuna, W/o.Suri @ Surya @ Kumar @ Arun @ Sakthi, aged 29 years, was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding her as a "GOONDA".
As per the grounds of detention dated 30.12.2013, passed by the second respondent, the detenu came to adverse notice in the following cases:
i)Adverse case:
Sl No.
Name of the Police station and Crime No.
Section of law
1
E1 Mylapore PS Cr.No. 909/2009
379 IPC
2
G7 Chetpet Police Station Cr.No. 105/2013
379 IPC
3
G7 Chetpet Police Station Cr.No. 153/2013
379 IPC
4
P1 Pulianthope PS Cr.No. 2467/2013
379 IPC
(ii) Ground Case:
Sl No.
Name of the Police station and Crime No.
Section of law
1
P2 Otteri Police Station Cr.No. 1877/2013
379, 336, 323, 397 & 506[ii] IPC
Though many grounds have been raised in the petition, Mr.N.Anand Venkatesh, the learned counsel appearing for the petitioner, confines his argument only in respect of non-application of mind on the part of the detaining authority in passing the order of detention.
According to the learned counsel appearing for the petitioner, the detenu has been in remand in the ground case in Cr.No. 1877/2013 registered by P2 Otteri Police Station and the detenu has not moved any bail application in the ground case as on the date of the passing of the detention order. He would also contend that the detaining authority has placed reliance on the statement of the sponsoring authority to the effect that the relatives of the detenu are taking steps to take him out on bail by filing bail application in the ground case. The learned counsel would add that admittedly, in this case, the detenu has not moved any bail application in the ground case. When no bail application is filed, there is no real possibility of the detenu coming out on bail. No cogent materials are available before the Detaining Authority to conclude / to apprehend that the detenu is likely to get bail in the ground case and there is no imminent possibility of the detenu coming out on bail in the said case. Hence, it is stated that the Detaining Authority has passed the impugned detention order in total non-application of mind and the subjective satisfaction arrived at by the Detaining Authority that there is real possibility of the detenu coming out on bail in the ground case, is a mere ipse dixit without any cogent materials. In support of his contention, he relies on the judgments of the Hon''ble Apex Court reported in [a] 2006 [1] MLJ [Crl.] 539, [T.V.Saravanan @ S.A.R.Prasanna Venkatachariar Chaturvedi V. State of Tamilnadu through Secretary and Another]; [b] Velumurugan @ Velu Vs. The Commissioner of Police and Another, and [c] Huidrom Konungjao Singh Vs. State of Manipur and Others,
Per contra, the learned Additional Public Prosecutor would submit that the order of detention has been passed on cogent and sufficient materials and the same cannot be interfered with at the instance of the petitioner. Therefore, he submits that the Habeas Corpus Petition does not merit any consideration and the same is liable to be dismissed.
We have heard the learned counsel for both sides with regard to the facts and citation.
Before adverting to the arguments of the counsel for both sides, we would like to reproduce the relevant portion of the grounds of the detention order, viz., paragraph 4, on which much reliance has been placed by the learned counsel appearing for the petitioner:
4.I am aware that Tmt Pallavi @ Jamuna @ Yamuna is in remand in P2 Otteri Police Station Cr.No. 1877/2013 and she has not moved any bail application so far. The sponsoring authority has stated that the relatives of Tmt Pallavi @ Jamuna @ Yamuna are taking action to take her on bail inP2 Otteri Police Station Cr.No. 1877/2013 by filing bail application before appropriate court. In a similar case registered at V5 Thirumangalam Police Station Cr.No. 160/2013 u/s.341, 294[b], 336, 427, 397 and 506[ii] IPC bail was granted by the Court of Principal Sessions Judge, Chennai, to the accused Vadivel in Crl.MP.No. 929/2013. Hence I infer that there is real possibility of her coming out on bail in P2 Otteri Police Station Cr.No. 1877/2013 by filing bail application before the appropriate Court, since in similar cases bails are granted by the Courts after a lapse of time. If she comes out on bail, she will indulge in further activities, which will be prejudicial to the maintenance of public order...............
As could be seen from the above ground in the order of detention, the detenu is in remand in the ground case [Cr.No. 1877/2013] and she has not filed any bail application in the said ground case as on the date of passing of the detention order. Merely stating that steps have been taken on behalf of the detenu by the relatives of the detenu to file bail application in the ground case is not sufficient to pass an order of detention. Excepting recording a statement that the relatives of the detenu are taking steps to file bail application, no other material are shown as to the steps taken to file bail application in the ground case. When no bail application is filed, there is no imminent possibility of the detenu coming out on bail. Therefore, the subjective satisfaction arrived at by the detaining authority that there is real possibility of his coming out on bail in the ground case would be a mere ipse dixit and that would vitiate the order of detention and the same is indicative of total non-application of mind on the part of the Detaining Authority. Therefore on this ground also the impugned order is liable to be set aside. Hence, the order of detention cannot be sustained in the eye of law and the same is liable to be set aside.
In this connection it is useful to refer the judgment of the Hon''ble Apex Court relied on by the learned counsel for the petitioner.
[a]In 2006 [1] MLJ [Crl.] 539, [T.V.Saravanan @ S.A.R.Prasanna Venkatachariar Chaturvedi V. State of Tamilnadu Through Secretary and Another], wherein the Hon''ble Apex Court has held as follows:
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.
[b]In Velumurugan @ Velu Vs. The Commissioner of Police and Another, , it has been held as follows:
3.......unless there is a clear expression by the detaining authority in the grounds of detention with reference to the imminent possibility of the detenu being released on bail by filing bail application, the detaining authority would not choose to pass the detention order. In order to prevent the detenu from committing the acts, which would be disturbance to public order and public health, the detaining authority shall consider the materials and on the basis of subjective satisfaction that there is imminent possibility of the detenu coming out on bail or likelihood of the detenu being released on bail, the detaining authority may pass such an order under Tamil Nadu Act 14 of 1982. When such an essential requirement, namely, the imminent possibility of the detenu coming out on bail, is absent, it has to be held that the order of detention is vitiated.
[c]In Huidrom Konungjao Singh Vs. State of Manipur and Others, which reads thus:-
In Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, , this Court while dealing with the issue held :
........ A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored
In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground.
14......... Thus, as the detenu in the instant case has not moved the bail application and no other co-accused, if any, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eyes of law.
(emphasis supplied)
It is a trite law that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of Constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Preventive detention is preventive and not punitive. When ordinary law of the land is sufficient to deal with, taking recourse to the preventive detention law is illegal.
In the light of the above facts and law, we have no hesitation in quashing the order of detention on the above mentioned grounds.
Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order in Memo No. 2123/BDFGISSV/2013 dated 30.12.2013 passed by the second respondent is set aside. The detenu, viz., Pallavi @ Jamuna @ Yamuna, Wife of Suri @ Surya @ Kumar @ Arun @ Sakthi, aged 29 years, is directed to be released forthwith unless her presence is required in connection with any other case.