Vaaneswari vs The Secretary to Government, Prohibition and Excise (XIV) Department, The Commissioner of Police and The Superintendent, Central Prison

S. Palanivelu, J.—The petitioner is the wife of the detenu. The second respondent passed the detention order in No. 11/BDF GISSY/2007

dated 10.4.2007.

There were 4 adverse cases against the detenu, who has been branded as Goonda. The first case is in Crime No. 277/2000 registered u/s 382

IPC on the file of the F2 S.S. Colony Police Station, Madurai in which the occurrence is said to have taken place on 14.3.2000 at 22.00hrs. The

second case is in Crime No. 437/2000 registered u/s 379 IPC on the file of the aforesaid police station alleging that the occurrence took place on

17.4.2000 at about 22.00 hours. Yet another case in Crime No. 223/2004 has also been registered against the detenu under Sections 387 and

506(ii) IPC on the file of B-11 Karimedu Police Station, Madurai. One more case is in Crime No. 913 of 2006 under Sections 341, 323 and

506(ii) IPC on the file of the B9 SS Colony Police Station, Madurai.

The ground case upon which the detention order came to be passed is one that on 14.3.2007 at about 07.00 hours one Sundar was coming to

Arasaradi Othakadai Market to purchase vegetables. At that time, the detenu threatened and demanded a sum of Rs. 100/- from him and since he

refused, by threatening him at knife point, the detenu robbed Rs. 100/- from the shirt of that C. Sundar and while Sundar raised alarm, the detenu

threatened the general public and escaped from the scene of crime. A case was registered in Crime No. 448/2007 under Sections 392 r/w 397,

506(ii) IPC on the file of the C3 S.S. Colony Police Station, Madurai.

Learned Counsel for the petitioner very much assails the order of detention on the ground that mere reading of the operative portion of the said

order would go to show that there was no application of mind on the part of the detaining authority. In paragraph 5 of the detention order, the

detaining authority viz., the second respondent has mentioned as follows:

I am aware that Tr. Sothupanai @ Sivakumar, S/o. Murugan is in remand in ground case C.3.S.S. Colony PS Cr. No. 448/2007, lodged at the

Central Prison, Madurai and that bail application moved on his behalf in the above case before Principal Sessions Judge, Madurai vide Crl.M.P.

No. 1233/2007 was dismissed on 28.3.2007. 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 on 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 activities which are prejudicial to the maintenance of public order. On the

materials placed before me, I am satisfied that the said Tr.Sothupanai @ Sivakumar, S/o. Murugan is a ''Goonda'' and there is a compelling

necessity to detain him in order to prevent him from indulging in acts which are prejudicial to the maintenance of public order under the provisions

of the Tamil Nadu Act 14 of 1982.

In fact, the detenu already filed a petition for bail before the Principal Sessions Judge in Madurai vide Crl.M.P. No. 1233 of 2007, which

suffered dismissal on 28.3.2007. After 12 days from the date of dismissal, the detention order came to be passed. Mentioning the above said fact

of the dismissal of the bail application, the detaining authority has stated that there is every possibility for the detenu to file further bail application

and he may come out on bail, adding that in similar cases, Concerned Court or the High Court after lapse of time have granted bail orders.

Even though, he has mentioned his apprehension to the effect that if the detenu comes out on bail, he would indulge in the activities which is

prejudicial to the maintenance of pubalic order in the society, still it has to be seen in this matter whether the detaining authority has applied his mind

before passing the above said order.

In this context, the learned Counsel for the petitioner relied on the decision reported in T.V. Saravanan @ S.A.R. Prasana Venkatachaariar

Chaturvedi Vs. State through Secretary and Another, wherein Their Lordships have held as follows:

We are satisfied that for the same reason the order of detention cannot be upheld in this case. The bail applications moved by the appellant had

been rejected by the Courts and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was

imminent possibility of the prayer for bail being granted. The ""imminent possibility"" of the appellant coming out on bail is merely the ipse dixit of the

detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the

detaining authority could be satisfied that the detenu was likely to be released on bail. The inference has to be drawn from the available material on

record. In the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention.

There was, therefore, no sufficient compliance with the requirements as laid down by this Court.

The Apex Court in the above said case when came up for decision, analysed the previous circumstances when the detenu filed many

applications for bail which faced dismissal even then the detaining authority had observed that there was possibility for the detenu to file fresh

applications for bail and he might get bail from the concerned court and that there was imminent possibility for him to come out on bail.

Taking into consideration the above said version of the detaining authority, the Hon''ble Supreme Court has found that the terms employed by

the detaining authority are only ipse dixit of the said authority and it will not be sufficient to satisfy the requirements of settled principles of law.

The settled legal position and the guidelines formulated by the Hon''ble Supreme Court have to be followed on the identical circumstances

prevailing in this matter also.

In the light of the dictum laid down by the Supreme Court when the detention order in this case is considered, it is very clear that the detaining

authority has not applied his mind before passing the detention order.

In view of the above said position of law, the detention order passed by the second respondent suffers from infirmity.

Learned Counsel for the petitioner also placed reliance upon the Division Bench decision of this Court passed in Habeas Corpus Petition

(MD) No. 248 of 2007 on 10.8.2007 wherein similar circumstances were prevailing and this Court found that there was no material to show that

the detenu would file bail application and the apprehension on the part of the detaining authority is mere ipsi dixit, which was not based upon any

cogent materials. In the above said circumstances, we do not satisfy with the materials made available in the ground case and the detention order

deserves to be quashed.

In the result, the Habeas Corpus Petition is allowed. The impugned detention order dated 10.4.2007 is quashed and the detenu is directed to

be released forthwith if he is not required in connection with any other case.