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Judgment
S. Palanivelu, J.—Petitioner, who is branded as a Goonda under Tamil Nadu Act 14 of 1982, has filed this Habeas Corpus Petition, against
the order of detention, dated 16.02.2007, clamped against him by the second respondent in No. 6/BDFGISSV/2006.
Petitioner came to adverse notice of the police in as many as seven cases. The detaining authority, namely, second respondent, on the strength
of the report of the sponsoring authority, namely, Inspector of Police, B-1 Vilakkuthoon Police Station, Madurai, passed the detention order. The
ground case mentioned therein goes to the effect that on 10.01.2007 at about 9.00 a.m., when one Shanker and Sethuramalingam were chatting in
front of Kumaran Hospital near Arasamaram Pillaiyar Kovil, Kamarajar Salai, Madurai, the detenu came and issued threats to them, demanding
money, for which Shanker refused and then the detenu picked up a knife, hidden in his left waist, and pointed it towards Shanker''s chest and, on
threatening, he robbed a sum of Rs. 200/- and a Nokia Cell from his shirt pocket and snatched his wrist watch also, besides criminally intimidating
both of them with knife that he would murder them, on account of which Shanker raised an alarm. Due to the said activities, the general public ran
helter skelter; the shop owners drowned their shutters and the traffic came to a standstill. The detenu fled away from the scene. Hence, a case in
Crime No. 56 of 2007 was registered against the detenu for the offences under Sections 397 and 506-II IPC on the file of B-1 Vilakkuthoon
Police Station, Madurai. Subsequently, the detenu was arrested on 14.01.2007 and further investigation was carried out.
Mr. C.M. Arumugam, learned Counsel for the petitioner would draw attention of this Court to various circumstances on which he formed
grounds to portray that the detaining authority has not applied his mind, while passing the order of detention. His contentions are four pronged
which are as under:
(i) Non-production of rough sketches in each of the cases registered against the detenu by the police
(ii) In the booklet supplied to the detenu, containing more than 100 pages, the sponsoring authority has not put his signature, which would show the
non-application of mind.
(iii) Reference by the detaining authority in his order to the effect that there is a real possibility of the detenu coming out on bail by filing a bail
application for the ground case, since in similar cases bails are already granted, though no such application is filed.
(iv) Except the ground case, all other cases do not pertain to public tranquillity.
As regards the first contention, it is argued on behalf of the petitioner that the second respondent has not disclosed anything in his proceedings
for detention as to the consideration of rough sketches, which would show that there was no application of mind on his part and, further, they were
not furnished to the detenu. Learned Counsel for the petitioner would strenuously contend that only if the sketches were furnished to the detenu, he
could make an effective representation before the authorities concerned and non-furnishing of the same would vitiate the order of detention and
also be a travesty of justice.
Repelling the said contention, the second respondent, in the counter affidavit, has mentioned that though the copies of rough sketches of all the
adverse cases were not furnished to the detenu, the relevant informations contained in the rough sketches were supplied to the detenu in page Nos.
12, 13, 54, 55, 95, 96, 126, 127, 156, 157, 183, 184, 216 and 217 of the booklet, under acknowledgement.
This Court has gone through the above said pages, whereupon it is opined that the documents, which are all essential for making an effective
representation, have been supplied to the detenu and merely because the copies of sketches were not furnished to the detenu, it could not be
decided that the detenu has been deprived of his right of making an effective representation.
According to the learned Counsel for the petitioner, only if the copies of rough sketches in the adverse cases are gone through, the petitioner
would come to know that the place of occurrence was a public place and his representation could be made, making his stand in a candid manner.
In our view, the said contention does not carry any weight, since the other materials would amply amplify the particulars with reference to the
place of occurrence and time. Just because the rough sketches were not given for perusal of the detenu, one cannot pounce to come to the
conclusion that the detenu would be unable to know the place of occurrence. Therefore, the contention based on the first ground fails.
The next limb of contention of the learned Counsel for the petitioner is that non-application of mind on the part of the sponsoring authority could
be inferred from a circumstance where he has not signed in all the pages of the booklet, supplied to the detenu.
In response to the said contention, the second respondent has mentioned in his counter that the sponsoring authority has affixed signatures at
the bottom of each and every page of the booklet, supplied to the petitioner.
A careful perusal of the booklet shows that at the end of each and every document, the sponsoring authority, namely, the Inspector of Police,
B-1 Vilakkuthoon Police Station, Maudrai has put his signature and the official rubber stamp is also engrossed.
The backbone of the contention of the learned Counsel for the petitioner in this regard is that the detaining authority failed to apply his mind,
before passing the detention order against the detenu, while he observed about the filing of bail applications by the detenu before the Courts
concerned. Following is the portion under attack from the side of the detenu:
I am aware that Tr. Samsudeen, S/o. Mustafa, is in remand in B1. Vilakkuthoon PS Cr. No. 26/2007, 27/2007, 44/2007 and 56/2007 and he
is lodged at the Central Prison, Madurai and that bail application moved on his behalf in Cr. No. 56/2007 before JM No. 1, Madurai, vide Crl.
M.P. No. 868/07 was dismissed on 13.02.2007. Further, the bail applications for the above mentioned cases were filed before JM No. 1,
Madurai and they were posted on 20.02.2007 for hearing. I am also aware that there is real possibility of his coming out on bail by filing further
bail application for the above case since in similar cases bails are granted by the concerned Court or Higher Court after lapse of time. If he comes
out of bail, he will indulge in future activities which will be prejudicial to the maintenance of public order and therefore there is a compelling
necessity to pass this order of detention with a view to preventing him from indulging in such prejudicial activities in future. Further, the recourse to
normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities which are prejudicial to the
maintenance of public order.
It is mentioned in the detention order that the detenu was detained in Central prison, Madurai, at the time of passing of the detention order and
he filed Criminal M.P. No. 868 of 2007 for bail in Crime No. 56 of 2007 before the Court of Judicial Magistrate No. 1, Madurai, which suffered
dismissal on 13.02.2007. The detaining authority has clearly stated in his order that the bail applications filed by the detenu in other cases has been
posted on 20.02.2007 for hearing. However, the detention order was passed on 16.02.2007.
Page 210-A of the booklet filed by the second respondent is a copy of the petition filed by the detenu for bail on the file of Judicial Magistrate
No. I, Madurai, in Crime No. 44 of 2007, on 09.02.2007. When the case was taken up on 15.02.2007, there was no representation and, hence,
it was adjourned to 20.02.2007, for further hearing. The very fact of pending of the bail petition has prompted the detaining authority to pass the
order of detention, containing the above said observations.
Learned Counsel for the petitioner would argue in vehemence that non-application of mind on the part of the detaining authority is discernible
from his statement itself in his order, to the effect that he was aware that there was a real possibility of the detenu coming out on bail by filing further
bail application for the above said case, since in similar cases, bails were granted by the Court concerned or higher Court, after a lapse of time.
In this connection, the learned Additional Public Prosecutor would garner support from a decision of the Supreme Court in A. Geetha v. State
of T.N. and Anr. 2006 (3) SCC (Cri) 324, wherein, certain principles have been formulated, after referring to two earlier decisions of the same
Court and a conclusion was arrived at that the possibility of granting of bail in a case would depend upon the facts and circumstances of each case
and the subjective satisfaction of the detaining authority would be gathered from the materials placed before him, which could be deducible from
the order itself. The operative portion of the said decision goes thus:
t has to be noted that whether prayer for bail would be accepted depends on circumstances of each case and no hard-and-fast rule can be
applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on
bail. The conclusion that the detenu may be released on bail cannot be ipse dixit of the detaining authority. On the basis of materials before him, the
detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. That is his subjective satisfaction based on
materials. Normally, such satisfaction is not to be interfered with. On the facts of the case, the detaining authority has indicated as to why he was of
the opinion that there is likelihood of the detenu being released on bail. It has been clearly stated that in similar cases orders grating bail are passed
by various Courts. The appellant has not disputed the correctness of this statement. Strong reliance was placed by learned Counsel for the
appellant on Rajesh Gulati Vs. Govt. of N.C.T. of Delhi and Another, . The factual scenario in that case was entirely different. In fact, five bail
applications filed had been already rejected. In that background, this Court observed that it was not a ""normal"" case. The High Court was justified
in rejecting the stand of the appellant See Ibrahim Nazeer Vs. State of Tamil Nadu and Another, and Senthamilselvi Vs. State of Tamil Nadu and
Another, .
Applying the ratio laid down in the decision aforementioned to the facts of the present case, it must be held that the detaining authority was
very much satisfied that there was every possibility for the detenu to come out on bail and the apprehension was not a mere ipse dixit but on the
materials available before him. Further, the opinion formed by the detaining authority goes to the effect that like the bail petition filed in Crime No.
44 of 2007, the detenu may file a further petition in the ground case also for bail and there would be every possibility for him to come out on bail.
The apprehension in the mind of the detaining authority is quite reasonable and, by no stretch of imagination, it could be stated that the detaining
authority had not applied his mind before passing the detention order.
The learned Additional Public Prosecutor also relied upon a Full Bench decision of this Court in K. Thirupathi v. District Magistrate and
District Collector, Tiruchirapalli and Anr. 2005 M.L.J. 1101, wherein this Court has held that a strict insistence of the usage of the 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. The Full Bench has further observed in the following
terms:
There must be cogent material before the Authority passing the detention order for interfering that the detenu was likely to be released on bail.
This inference must be drawn from material or record and must not be the ipse dixit of the Authority passing the detention order.
In the case of a person in custody, a detenion order can validly be passed if the authority passing the order is aware of the fact that he is
actually in custody; if he has reason to believe on the basis of reliable material placed before him: (a) that there is a real possibility of his being
released on bail, and (b) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording its
satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if
bail is granted notwithstanding such opposition to question it before a higher Court.
On application of the above said two tests to the facts of the present case, it would be seen that the detention order had passed through them
successfully and there was a real possibility for the detenu to get released on bail and that it was essential for the detaining authority to prevent him
from committing any further offence.
In Radha v. Secretary to Government, Prohibition & Excise Department, Chennai, and Anr. 2007 (2) M.L.J. (Cri) 1305, a Division Bench of
this Court, while discussing a similar circumstance in a Habeas Corpus Petition proceedings, has observed that subjective satisfaction recorded by
the detaining authority in the peculiar facts and circumstances of the case cannot be said to be baseless, warranting interference by this Court.
On the contrary, learned Counsel for the petitioner placed much reliance upon a decision of this Court in Rathinammal Vs. The State of
Tamilnadu, , in which a Division Bench of this Court, while discussing the import of the term ""imminent possibility"", had observed as follows:
Imminent possibility"" is relevant to the present circumstances and not relating to the future. The detaining authority has passed the impugned
order of detention stating that there is an imminent possibility of coming out on bail, without any basis for such a possibility to occur in future,
particularly, when the detenu has not resorted to file any bail application, which would reflect the non-application of mind of the detaining authority
to the actual situation of the case.
It was also observed in the said decision that the possibility of the Court granting bail may not be sufficient nor a bald statement that the person
would repeat his criminal activities would be enough.
However, in view of the law laid down by the Apex Court in A. Geetha''s case (supra), it is elucidated that the subjective satisfaction of the
detaining authority has been drawn from a circumstance that there was an ""imminent possibility"" of the detenu being released on bail. As already
stated, the detention order contains the circumstances for the detaining authority to conclude so.
Therefore, we are of the considered opinion that the detaining authority has made up his mind, after reaching ''subjective satisfaction'' as to the
circumstance of possibility of the bail being granted to the detenu in the near future. Under the circumstances, it is futile to contend that the detaining
authority has not applied his mind in this regard.
Yet another contention on the side of the detenu is that barring the ground case, other cases are not relatable to the public tranquillity.
As far as the circumstances of these proceedings are concerned, the ground case itself is very much enough, to find out that the activity of the
detenu is injurious to public tranquillity and prejudicial to the maintenance of public order. In addition, one more case in Crime No. 344 of 2006
registered for the offence under Sections 397 read with 506-II IPC had also taken place in a public area i.e., in front of the Indian Bank, TVS
Nagar, Madurai, in which the detenu snatched a gold ring at knife point from one Balaji and he also threatened him to kill, as a result of which the
public order was disrupted in the said place for sometime. The activities of the detenu continuously putting the public order in peril constituted a
good ground for the sponsoring authority to recommend for his detention and, on this ground, the petitioner cannot assail that the detention order
suffers from infirmities.
To sum up, the non-supply of rough sketches has not vitiated the detention order and, as to the imminent possibility of the detenu being
released on bail, the detaining authority has appreciated the circumstances in a manner as required by the settled principles of law. Further, due
satisfaction has also been reached by the detaining authority on the point of prejudice to the public tranquillity by the activities of the petitioner.
Therefore, the detention order is quite in order and the H.C.P. is dismissed.