Thangam vs State of Tamil Nadu

R. Balasubramanian, J.—The Petitioner is the detenu himself under the Tamil Nadu Act 14 of 1992 branded as a ''goonda''. Mr. P.

Venkatasubramanian. learned Counsel argued on behalf of the detenue to set aside the order of detention only on one ground (though many

grounds have been raised in the grounds of the writ petition) that there are no materials at all before the detaining authority so as to enable him to

arrive at the subjective satisfaction that there is a possibility of the detenue coming out on bail. If that is so, there would be no compelling necessity

to make the order of detention. In answer to this, the learned Additional Public Prosecutor would argue that once the subjective satisfaction is

reflected in the grounds of detention, the court would be reluctant to probe into the truth or otherwise of the subjective satisfaction arrived at by the

detaining authority. Therefore the learned Additional Public Prosecutor would contend that so long as the subjective satisfaction referred to above

is reflected in the grounds of detention, it must be accepted as true.

In view of the rival contentions we propose to extract in this order the relevant portion of the grounds of detention to decide whether the

detaining authority had arrived at the subjective satisfaction:

I am aware that Thiru Thangam has been remanded to judicial custody by the III Additional Sessions Judge, Tirunelveli. He is remand prisoner

lodged at Sub Jail, Kokkorakulam. I am aware that he has not tiled any bail petition so far. But there is a possibility of filing a bail petition and there

is therefore a possibility of his coming out on bail in future.

There are two adverse cases noticed against the detenue one on 28.12.1997 registered for the offence of murder and the other on 15.4.1999

registered for the offences punishable u/s 294(b) and 506(ii) of the Indian Penal Code. The ground case was on 16.4.1999 in Crime No. 92/99

for the offences punishable under Sections 341, 307 of the Indian Penal Code and 3(1)(10) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act.

Therefore in the face of crimes said to have been registered against the detenue the question that falls for consideration is whether in the absence

of any bail petition before the competent Court, the mere statement of the detaining authority that there is a possibility of the detenue filing of bail

petition and there is a possibility of the detenue coming out on bail on account of such bail petition, can be taken as a material to lead to the

compelling necessity to pass an order of detention. In Rivedenyta Ricardo Agustin v. Government of the National Capital Territory of Delhi and

Ors. 1994 SCC (Cri) 354 (Ricardo''s case) the order of detention was challenged on the ground that there was no material at all before the

detaining authority to come to the subjective satisfaction about the possibility of the detenue coming out on bail. In that case the detaining authority

is stated to have made a statement that the Petitioner is likely to be released on bail and it was contended that such a statement would not be

enough to arrive at the subjective satisfaction. In dealing with that fact situation the Honourable Supreme Court of India noticing that in the

detention order it was only stated that there was a possibility of the detenue being released in case if he moves a bail application and since the

grounds did not indicate that such release was likely or that was imminent, held that on a mere possibility the detention order could not have been

passed. The Honourable Judges had also examined the relevant file and found that there was no material indicating that the release of the Petitioner

was likely. The learned Additional Public Prosecutor himself brought to our notice the judgment of this Court dated 3.2.2000 in H.C.P. No. 685

of 1999 where the Bench noticed as follows:

There are cases where the bail could not be normally granted by the Court and there are also cases where the bail could be normally granted after

some time. As this case relates to Section 4(1-A) of the Tamil Nadu Prohibition Act the possibility of filing the bail application and coming out on

bail cannot be ruled out. Taking into consideration the above materials the detaining authority felt that it was necessary to detain the Petitioner in

order to prevent him from indulging in the activities which are prejudicial to the maintenance of public order

Therefore it is clear from the judgment in Ricardo''s Case as well as from the judgment last referred to, the details of the grounds which are

reflected in the grounds of detention would be a guiding factor for the detaining authority to arrive at the subjective satisfaction as to whether there

is an imminent possibility of the detenue coming out on bail.

In the case on hand, we have found that in the first adverse case, among the other offences the offence punishable u/s 302 of the Indian Penal

Code had been registered. In the second adverse case offences punishable u/s 294 and 506(ii) of the Indian Penal Code stand registered. In the

ground case among other offences, the offence punishable u/s 307 of the Indian Penal Code and Section 3(1)(10) of the Scheduled Casts and

Scheduled Tribes (Prevention of Atrocities) Act had been registered. Therefore from the very nature of the offences registered as noticed above, it

is not possible to arrive at the subjective satisfaction, about the imminent possibility of the intended detenue coming out on bail. We are of the

opinion that in the backdrop of the offences already registered, which includes the offence punishable u/s 302 of the Indian Penal Code and

offences punishable u/s 307 of the Indian Penal Code and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, the possibility of the intended detenue to come out on bail as matter of course does not appear to be bright as the detaining

authority thought of. At the risk of repetition we are of the opinion that as already held by this Court in H.C.P. No. 685 of 1999 the offences

registered against the detenue would not confer on him a right of bail as a matter of right and therefore there is a possibility of the Court declining

bail also. If that is so, the mere statement of the detaining authority in the grounds of detention that there is a possibility of the detenue filing a bail

application and that in that event he is likely to come out on bail definitely falls short of necessary material. Admittedly, in this case the detenue had

not filed any bail petition at all and hence there are no materials at all available for the detaining authority to conclude that there is a compelling

necessity to pass the order of detention.

Therefore the order of detention definitely is a result of non application of mind. The learned Additional Public Prosecutor heavily relied upon the

judgment of the Supreme Court in Veeramani v. State of Tamil Nadu 1994 SCC (Crl.) 482 to contend that the awareness of the detaining

authority about the intended detenue being in jail custody as a remand prisoner and his knowledge of the fact that the detenue is likely to come out

on bail is sufficient. But we are unable to find any support for this argument from that judgment. In that judgment the detaining authority had stated

that there is an imminent possibility of the detenue coming out on bail and in cases of the type involved in that case bail is usually granted. That

averment is not available in the grounds of detention in the case on hand. It may be noticed that the offences registered against the detenue in the

case on hand are one under the Indian Penal Code and from the very nature of the offences, it cannot be stated with certainty that the Court will

usually grant bail. The judgment of the Honourable Supreme Court in the Ricardo''s case was also taken into account in Veeramani''s case. In

Veeramani''s case, that judgment had not been overruled or held to be bad law. On the discussions made above we are of the opinion that the

impugned order of detention cannot be sustained, as there are no materials to support the subjective satisfaction of the detaining authority about the

imminent possibility of the detenue coming out on bail. Accordingly the same is quashed. The Habeas Corpus Petition is allowed. The detenue is

directed to be released forthwith unless his detention is required in connection with any other case.