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Judgment
D. Murugesan, J.—The petitioner is the detenu. He challenges the order of preventive detention, dated 02.01.2008, clamped on him by the
3rd respondent under the provisions of National Security Act, 1980 on the ground that he was found in activities prejudicial to the security of the
State and prejudicial to the maintenance of public order.
The said order of detention has been passed on the basis of a complaint given by one Vimala, Sub-Inspector of Police, Keelathooval Police
Station and in-charge of National Highway Patrol Party. According to the complainant, on 18.11.2007, at about 11.00 p.m., when she and her
team were on a Highway Patrol, they intercepted a 407 Mini-Lorry bearing Regn.No.TN-65 6112 in front of Shri Meenakshi Bhavan Hotel at
Sunthanenthal Village, near Paramakudi and on search of the vehicle the team found (1) 50 bags of white colour powder (suspected to be
potassium chlorate), weighing 50 kg.each, kept in white colour plastic bags, (2) Nature Power Soap-6, (3) Herbal Care Mysore Sandal Soap-3,
(4) Thulasi Soap-6, (5) Medimix Soap-12, (6) Hamam Soap-12, (7) Hamam Soap (Small)-4, (8) Mesak Tooth Paste-3, (9) Senthil Murugan
sealing wax-9 Packets and (10) Isaa Sealing wax-16. On interrogation, the driver of the vehicle by name Subramaniam gave a confession
statement implicating one Nethaji and Deniston, who were the master brain for the above smuggling activities. A case was registered in crime No.
1/2007 on the file Ramanathapuram Q-Branch CID for the offences u/s 13(1) & (2) of Unlawful Activities (Prevention) Act, 1967, Section 5 of
Explosive Substances Act, 1908 and Section 14 of Foreigners Act, 1946 read with Rule 3(a) read with 6(a) of Passport (Entry into India) Rules,
1950. On the basis of the confession given by the driver of the vehicle, the petitioner was arrested on 27.11.2007 and was remanded to judicial
custody on 28.11.2007.
Investigation in the case revealed that the petitioner is a Sri Lankan National and a member of the political wing of LTTE. He entered into India
without valid legal documents and tried to smuggle the materials for making ammunition to the organization of LTTE in Sri Lanka, a banned
organisation in India, with the help of the above said Nethaji and Deniston. The detaining authority, having satisfied that the petitioner was found in
activities prejudicial to the security of the State and prejudicial to the maintenance of public order, had imposed the impugned order of detention on
the petitioner.
In challenging the detention order, the learned counsel appearing for the petitioner has raised as many as six grounds. However, in view of the
fact that the satisfaction of the detaining authority as to the detenu filing a bail application and coming out on bail is not supported by any material,
we are inclined to deal with the said point alone leaving the other points without any consideration.
In paragraph 4 of the Grounds of Detention, the detaining authority has stated as follows:
I am aware that, Thiru.Satheesh @ Thatheeswaran @ Thamilvanan @ Nagulan is in Judicial Custody in Central Prison, Madurai in connection
with Ramanathapuram Q Branch CID Cr. No. 1/2007 u/s 13(1) & (2) of Unlawful Activities (Prevention) Act 1967 and Section 5 of Explosive
Substances Act 1908 and 14 of Foreigners Act 1946, r/w 3(a) r/w 6(a) of Passport (Entry into India) Rule 1950. Accused Thiru. Satheesh @
Thatheeswaran @ Thamilvanan @ Nagulan was produced before the Judicial Magistrate Court, Paramakudi on 28.11.07 and remanded in the
Central Prison, Madurai from 28.11.07. He has not moved any bail petition. There is real possibility of his coming out on bail by filing bail
application for the above case in the Court concerned or higher Courts....
On a perusal of the above said paragraph, it appears that the detaining authority, after extracting the various provisions of respective Acts under
which the detenu has been booked, has merely stated that the detenu has not moved any bail application and there is real possibility of his coming
out on bail by filing a bail application in the above case in the court concerned or higher courts.
The Court must therefore find out as to whether any materials were placed before the detaining authority to enable him to arrive at the above
satisfaction. Firstly, this Court can not overlook the fact that the detenu has been booked for the alleged commission of various offences, not only
under the Unlawful Activities (Prevention) Act, 1967 but also under the Explosive Substances Act, Foreigners Act as well as Passport (Entry into
India) Rules, 1950, which are more serious and graver offences. That apart, the detenu is a Sri Lankan National. In these circumstances, normally,
grant of bail is a remote possibility.
That apart, admittedly, the detenu has not filed any bail application, though he was arrested on 27.11.2007 and remanded to judicial custody on
28.11.2007 initially upto 12.12.2007 and thereafter the remand was extended till 03.01.2008. From 28.11.2007 till 03.01.2008, there was no
bail application.
The question as to how the detaining authority could arrive at a satisfaction as to the detenu filing bail application and the possibility of coming
out on bail came up for consideration before the Apex Court in the year 2006 in the judgment in Senthamil Selvi v. State of Tamil Nadu (2006) 3
SCC (Cri.) 50 and the Apex Court had observed that ""though the only requirement for the detaining authority is that he should aware that the
detenu is in custody on the date of the detention order and there is likelihood of filing bail application and possibility of coming out on bail, the
conclusion so arrived at by the detaining authority cannot be his ipse dixit without supported by any material."" As a necessary corollary, the
conclusion or the awareness of the detaining authority must be supported by materials and in that event this conclusion or awareness is
unsupported by any materials, the detention order would be vitiated on the ground of failure to apply the mind as to the want of materials.
The above decision of the Supreme Court was quoted and relied on by a Full Bench of this Court in Kalaiselvi, G. v. The State of Tamil Nadu
2007 5 CTC 657. We may usefully refer the relevant paragraphs of the said judgment of the Full Court, namely paragraphs 14 and 24, which read
as under.
It is trite law that an order of detention is passed with a view to prevent a person acting in a manner prejudicial to the maintenance of public
order. When a person is in custody, in normal course, there may not be any apprehension that such person is likely to act in a manner prejudicial to
maintenance of public order, as such person is under the constant vigil of Jail authorities. However, it is now well recognised that an order of
preventive detention can be passed even in respect of a person in custody, provided the Detaining Authority comes to the conclusion, on cogent
material, that there is imminent possibility of the detenu being released from custody and there is compelling necessity to prevent such person acting
in a manner prejudicial to maintenance of public order. Where a person is at large, the Detaining Authority is required to come to the conclusion,
on the basis of his past conduct, that such person is likely to act in a manner prejudicial to the maintenance of public order and therefore there is a
necessity for passing an order of detention. Where such person is already in custody, the Detaining authority is required to come to an additional
conclusion that there is imminent possibility of he being released on bail.
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From the reading of the aforesaid decisions, it is clear that the conclusion of the detaining authority that there is imminent possibility of the
detenu being released on bail must be based on cogent materials and not on the mere ipse dixit of the detaining authority. As has been observed by
the Supreme Court, the question as to whether there is possibility of being released on bail depends upon several factors, such as nature of
offence, the stage of the investigation, the availability of statutory bail as envisaged u/s 167(2) proviso of Cr.P.C. Even though it is not possible nor
desirable to enumerate the circumstances in which bail is likely to be granted, one can venture to say that it is very rare for a court of law to grant
bail during pendency of the investigation when there is allegation of commission of serious offence, such as punishable u/s 302 or Section 395 IPC.
On the other hand, it is also safe to conclude that in offences relating to prohibition laws or white collar offences, the courts usually grant bail
notwithstanding the fact that investigation may be still going on. Similarly, when a charge sheet is not filed within the statutory period contemplated,
notwithstanding the seriousness of the allegation, on the expiry of the period, the accused got a right to be released on bail.
A careful consideration of the above judgment would make it very clear that unless the satisfaction of the detaining authority as to the detenu
filing a bail application and possibility of coming out on bail is supported by materials, such satisfaction would vitiate the detention order on the
ground of total non-application of mind.
An order detention can be validly passed against a person in custody and for that purpose, it is necessary that the grounds of detention must
show that the detaining authority was aware of the fact that the detenu is already in custody and there were compelling reasons justifying such
detention, despite the fact that the detenu is already in detention. The expression ""compelling reasons"" in the context of making an order of
detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be
satisfied that the detenu is likely to be released from custody in the near future. It is well settled that if a man is in custody and there is no imminent
possibility of his being released, the power of preventive detention should not be exercised. See Binod Singh Vs. District Magistrate, Dhanbad,
Bihar and Others, .
In Kamarunnissa and Others Vs. Union of India and another, , speaking for the Bench, His Lordship Justice A.M. Ahmadi, while considering
the awareness of the detaining authority as to the possibility of coming out on bail has observed as follows:
In the case of a person in custody, a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is
actually in custody; (ii) 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) that on being so released he would in all probability indulge in prejudicial activity and (3) it is felt essential to detain him to
prevent him from so doing.
Therefore, to pass an order of detention, the above cogent materials must be available before the detaining authority and in the absence of such
cogent materials, the detention order is liable to be interfered.
On the facts of this case, the detenu is a Sri Lankan National and he has been charged with various offences punishable under the Unlawful
Activities (Prevention) Act, 1967 but also under the Explosive Substances Act, Foreigners Act as well as Passport (Entry into India) Rules, 1950
and on the above back drop, in our considered view, there is no real possibility of him being granted bail, as such possibility is very remote. The
remote possibility of getting bail cannot be equated with the real possibility of grant of bail.
There is no dispute, in the present case, that except the statement which we have referred to in the earlier portion of the order, the detaining
authority was not furnished with any material for himself to arrive at the satisfaction that the detenu would file a bail application and there is
possibility of coming out on bail. In the absence of such material, we are of the considered view that the satisfaction arrived at by the detaining
authority is vitiated and consequently the detention order is also vitiated.
Accordingly, the habeas corpus petition is allowed and the impugned order of detention in Cr. M.P. No. 3/NSA/2008, dated 02.01.2008, is
quashed. The detenu is directed to be released forthwith, unless his presence is required in connection with any other case.