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Judgment
F.M. Ibrahim Kalifulla, J.—This habeas corpus petition has been filed by the detenu himself, challenging the order of detention passed by the
first respondent dated 11.05.2007 passed u/s 3(i) of Tamil Nadu Act 14 of 1982 branding the detenu as a ''Goonda''.
There were as many as three adverse cases against the petitioner. The first adverse case was in Crime No. 1476 of 2005 dated 27.11.2005 for
offences under Sections 341, 294(b), 323 and 506(ii) of the Indian Penal Code for the alleged offences committed on 23.11.2005 at 16.00 hours
on VE Road at Thoothukudi. The second adverse case was in Crime No. 518 of 2006 dated 05.10.2006 for offences under Sections 324, 506(ii)
of the Indian Penal Code and Section 4 of TNPWH Act for the alleged commission of offence on 05.10.2006 at 21.30 hours at George Road in
Thoothukudi. The third adverse case was in Crime No. 307 of 2007 dated 16.04.2007 for offences under Sections 452,323 and 506(ii) of the
Indian Penal Code for the alleged offences committed on 15.04.2007 at 21.00 hours at George Road, Thoothukudi. The ground case was for an
offence in Crime No. 323 of 2007 alleged to have been committed on 19.04.2007 at 15.30 hours in the junction of Convent Road on VE Road,
Thoothukudi and Keela Shunmugapuram Road. The detenu is alleged to have waylaid one Thiru.Pandian and his friend Balan. The detenu along
with his brother Arumugam stated to have indulged in the said offence and the detenu waylaid the above person by name Pandian and also
attempted to assault him with a knife, who is stated to have warded off such an attempt. In that process, the detenu is also stated to have thrown a
country crude bomb from his pant pocket towards the victim, which fell down in a nearby culvert over ditch and exploded loudly. He was booked
for offences under Sections 341, 294(b), 427, 307 and 506(ii) of the Indian Penal Code and Sections 3, 4 and 5 of Explosive Substance Act. He
was arrested on the same day and sent for remand before the Judicial Magistrate No. 1, Thoothukudi, who remanded him to judicial custody till
03.05.2007 which was extended upto 17.05.2007.
Arguing for the petitioner, Mr. C. Mayil Vahana Rajendran, learned Counsel appearing on behalf of Mr. Thiruvadikumar, at the out set,
contended that there is non-application of mind by the detaining authority, inasmuch as the detaining authority, while referring to the fact that the
petitioner did not file any bail application after his remand, without any other material, reached a conclusion that there was every likelihood of the
petitioner filing bail application and coming out on bail before the same Court or in the High Court. The learned Counsel, while raising the above
said contention, placed reliance upon a Division Bench judgment of this Court dated 15.06.2007 passed in H.C.P.(MD)No. 155 of 2007. In the
said judgment, this very point, namely a case where no bail application is filed, but yet the detaining authority takes a view that the detenu is likely
to be released on bail in the near future was discussed at length by referring to an earlier order dated 14.06.2007 passed in a batch of habeas
corpus petitions in H.C.P. No. 64 of 2007 etc. While referring to the said issue, the earlier Division Bench has stated the legal position as under in
paragraph-23:
The satisfaction as to the real possibility or imminent possibility of the detenu to come out on bail is not a mere formality. Such a satisfaction
should be supported by material. The satisfaction as to the imminent or real possibility of the detenu to come out on bail can very well be
supported by materials, namely, the detenu had moved a bail application before the Court and such application was pending. In case, the detenu
had not moved bail application and consequently no bail application was pending before the courts, the satisfaction as to the real possibility or
imminent possibility of the detenu to come out on bail could justified on other materials like the preparation, attempt or contemplation by or on
behalf of the detenu to move the bail application and the same was within the knowledge of the detaining authority. However, when there was no
bail application filed or pending and in the absence of any other material to show that there was an attempt either by the detenu or on behalf of the
detenu to move the courts for bail, the satisfaction of the detaining authority as to the real possibility or imminent possibility of the detenu coming
out on bail would be non-application of mind for want of any materials. In this context, it would also be relevant to note that the detaining authority
had only formed his opinion and satisfied himself that the detenus may file applications and come out on bail after lapse of time, which is not either
definite or atleast in the near future. That apart, one more aspect is to be stated at this stage.
Mr. S.P. Samuel Raj, learned Additional Public Prosecutor, on the other hand, placed before us an earlier Division Bench judgment of this
Court in V. Sarangapani (deceased) and Others Vs. The Collector and The Special Tahsildar, (Adi Dravidar Welfare), and contended that in an
identical case, where the detenu was booked under several adverse cases of lesser offences and a ground case of a graver offence, the Division
Bench took the view that if there is every scope for the detenu to come out on bail in the ground case which is for a graver offence, there would be
every possibility of the detenu being released in the adverse cases and therefore, the conclusion of the detaining authority on that score cannot be
interfered with.
We are unable to apply the said decision to the facts of this case. First and foremost, as observed by the learned Judges in the said decision, the
contention was in relation to the likelihood of the detenu being released in the ground case where he was involved in graver offences and if for
lesser offences indisputably the detenu could be released on bail, there would be no impediment for the detenu to get bail in the lesser offences in
other adverse cases. Such a factual situation does not exist in the case on hand. In the case on hand, the detenu was already on bail in the adverse
cases where he was charged for lesser offences and in the ground case, though there was a charge u/s 307 of the Indian Penal Code as well as
under Sections 3, 4 and 5 of the Explosive Substance Act, the detaining authority would conclude, in spite of the fact that there was no bail
application that there was every possibility of the detenu coming out on bail by filing a bail application. When the decision of the Honourable
Supreme Court in Senthamilselvi v. State of T.N. reported in 2006 (3) SCC (Cri) 50 is applied, the Honourable Supreme Court made it clear that
the only requirement for the detaining authority is that he should be aware that the detenu is in custody and is likelihood to be released on bail. The
Supreme Court also made it clear that the conclusion that the detenu will be released on bail cannot be the ipse dixit of the detaining authority, but
should be based on materials. It is this aspect of the decision of the Honourable Supreme Court that such a conclusion should be based on material
facts which has been elaborated upon by the Division Bench in its order dated 14.06.2007 passed in the batch of habeas corpus petition cases
commencing with H.C.P.No. 64 of 2007 which has been extracted in the earlier part of this order. Therefore in the absence of such materials
available on record for consideration by the detaining authority and such consideration was very much made by the detaining authority by explicitly
disclosing the same in the order of detention, it will have to be held that the mere expression in the order of detention to the effect that though there
was no bail application, but yet there is a real possibility of the detenu coming out on bail can only be concluded as the ipse dixit of the detaining
authority.
Therefore, applying the above decision of the Honourable Supreme Court as well as the Division Bench decision of this Court referred to
above, we hold that the order of the detaining authority in merely stating that there was a real possibility of the detenu coming out on bail by filing a
bail application without reference to any other material on record gets vitiated, the Habeas Corpus Petition stands allowed and the order of
detention in H.S.(M)Confdl.No. 26/2007 dated 11.05.2007 passed by the first respondent is set aside. The detenu is directed to be set at liberty
forthwith, unless his presence is required in connection with any other case.