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Judgment
P. Sathasivam, J.—The detenu by name S.Sebastin who was detained u/s 3(1)(i) of the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act by the impugned proceedings dated 28.6.2005, challenges the same in this petition.
Heard the learned Senior counsel for the petitioner as well as the Additional Public Prosecutor for respondents 1 and 3 and Mr. P. Kumaresan,
learned Additional Central Government Standing Counsel for the second respondent.
Though several grounds have been raised in the affidavit questioning the impugned order of detention,at the foremost, learned Senior counsel
appearing for the petitioner would project that in view of the fact that the detenu was a remand prisoner and no application for bail was filed and in
the absence of any material, the detaining authority is not justified in satisfying himself that ""there is imminent possibility of releasing the detenu on
bail"". Accordingly, the detention order is liable to be quashed on the ground of non-application of mind.
Learned Additional Public prosecutor would submit that the detaining authority, after taking note of all the relevant materials and after satisfying
himself passed an order of detention in order to prevent him from smuggling the goods in future. Hence, no interference is warranted.
We have carefully considered the relevant material and the submissions made.
In order to appreciate the contentions raised by the learned Senior counsel for the petitioner, it is relevant to refer the actual statement made in
paragraph 5 of the grounds of detention which reads as under:
The State Government are aware of the fact that you are in the Central Prison, Chennai as remand prisoner and that your remand is for the
period specified in law and you would be released on statutory bail thereafter.
Further, the State Government are also aware of the fact that you are eligible to file a petition for bail and there is likelihood of you being released
on bail. In view of the facts and circumstances set out above, the State Government are satisfied that there is imminent possibility of releasing you
on bail and there is likelihood of your indulging in such prejudicial activities again while on bail and there is compelling necessity to prevent you from
smuggling of goods. The State Government, therefore, consider that it is necessary to detain you u/s 3(1)(i) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974.
The above particulars show that the detaining authority-State Government was aware of the fact that the detenu was in the Central Prison as a
remand prisoner and he is eligible to file a petition or bail. It also shows that admittedly the detenu had not filed a bail application nor any petition
that was pending on the date of passing of the detention order. In such circumstances and in the absence of any relevant material, we are of the
view that the detaining authority State Government is not justified in arriving at a conclusion that "" there is imminent possibility of releasing him on
bail..."".
It is true that the Full Bench decision reported in 2005(4)CTC 4 97(K.Thirupathi v. District Magistrate and District Collector,Tiruchirappalli)
held that strict insistence of the usage of word "" imminent"" is not necessary and the other convincing expressions like ""real possibility"", ""very likely
or ""most likely"" can be used by the detaining authority to reflect its satisfaction with regard to immediate release of the detenu on bail(Vide Para.29
of the Full Bench order).
However, as said earlier, it is not in dispute that on the date when the detaining authority passed the impugned order of detention, though the
detenu was in prison, admittedly, no application for bail was either filed or pending. In other words, there is no acceptable material before the
detaining authority for arriving at a conclusion or subjective satisfaction that the detenu will be coming out on bail.
In this regard, it is useful to refer the Division Bench decision in Thiru Krishnaswamy Govindan v. The Secretary,Government of Tamil Nadu,
Chennai and Ors., reported in (2004) M.L.J.(Crl)560. Almost in similar circumstances, viz. similar ground as grounds of detention in Ground No.5
of our case, the Division Bench, after considering the judgment in the case of Amritlal v. Union Government, reported in 2001 SCC (Crl.) 147 and
Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others, concluded as under:
Thus, the inference that was drawn by the detaining authority that the detenu is likely to be released on bail is not supported by any material
inasmuch as no application for bail was found to have been pending or that such a situation was grounded in the order of detention. Mere ipse dixit
of the officer passing the order of detention is not the criterian. There should be some material to infer that the detenu will come out on bail and that
material is the pendency of the application for bail. In the absence of that, the conclusion arrived by the authority is nothing but ipse dixit . On this
ground also, the order of detention gets vitiated.
We are in respectful agreement with the above view. As rightly pointed out, there should be some material to infer that the detenu will come
out on bail and that the material required is pendency of application for bail. As observed in the above referred Supreme Court decision, mere
mentioning of ""imminent possibility"" etc. cannot satisfy the test as enunciated in various decisions. On this ground, we are of the view that the
detention order gets vitiated.
Accordingly the Habeas Corpus petition is allowed and the impugned order of detention is set aside. The detenu is directed to be set at liberty
forthwith unless his detention is required in connection with any other cause.