S. Venugopal v. The Commissioner of Police & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27-06-2007CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MRS. JUSTICE R. BANUMATHIHABEAS CORPUS PETITION NO.1303 OF 2006S. VenugopalS/o. Sadagopan.. PetitionerVs.

The Commissioner of Police, Greater Chennai, Egmore, Chennai 8.

Government of Tamil Nadu, rep. by its Secretary, Prohibition & Excise Department, Fort St. George, Chennai 600 009... Respondents3. The Superintendent, Central PrisonVellorePetition filed under Article 226 of the Constitution of Indiafor the issuance of writ of Habeas Corpus to call for the recordsrelating to the proceedings of the first respondent in MemoNo.222/2006 dated 15.8.2006 and quash the same and consequentlydirect the respondents to produce the detenu Ramesh @ VellaiRamesh, son of S. Venugopal, who has been now detained under Act14/82 in Central Prison, Vellore, before this Court and set him atliberty. For Petitioner: Mr.R. RajanFor Respondents: Mr.M. Babu Muthu Meeran Addl. Public Prosecutor- - - https://hcservices.ecourts.gov.in/hcservices/

O R D E RP.K. MISRA, JThe order of detention dated 15.8.2006 under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, ImmoralTraffic Offenders, Sand Offenders, Slum Grabbers and Video PiratesAct, 1982 (Tamil Nadu Act 14 of 1982) on the allegation that thedetenu is a Goonda as contemplated under Section 2(f) of the saidAct is in question. Such detention order was executed on17.8.2006 and the grounds of detention were served on 18.8.2006.2. From the grounds of detention it appears that against thedetenu there are two adverse cases, namely, T-3 Korattur PoliceStation Cr.No.155/2004 under Sections 341 and 324 IPC and T-3Korattur Police Station Cr.No.181/2004 under Section 399 IPC. Inaddition, the ground case was registered as T-3 Korattur PoliceStation Cr.No.779 of 2006. Such ground case was on account of anincident dated 2.6.2006, which was initially registered under Sections 147, 148, 336, 324 and 307 IPC., but subsequentlyconverted to under Sections 147, 148, 336, 324, 307 and 302 IPC asthe victim had died. From the grounds of detention it is alsoapparent that the detenu surrendered before the JudicialMagistrate, Ambattur on 5.6.2006 and continued in custody andremand was being extended periodically. In the grounds ofdetention, the detaining authority has further observed:-"

I am also aware that Thiru Ramesh @ VellaiRamesh, is in remand in T.3 Korattur Police StationCrime No.779/2006 and he has moved a bail applicationbefore the District Principal and Sessions Court, Chengalpattu in Crl.MP.No.8369/2006 and the same wasdismissed. I am also aware that there is a realpossibility of his coming out on bail by filing anotherapplication before the same Court or Higher Courts sincein similar cases bails are granted by the same Court or Higher Court. If he comes out on bail, he will indulgein further activities, which will be prejudicial to themaintenance of public order. "3. One of the main contentions raised by the counsel forthe petitioner is that at the time when the order of detention waspassed, the detenu was in custody and there was no imminentpossibility of the detenu being released on bail and thereforethere was no necessity for passing an order of preventivedetention, but the detaining authority mechanically came to the https://hcservices.ecourts.gov.in/hcservices/ conclusion that there was real possibility of the detenu comingout on bail without any material on the basis of mere ipse dixitof the detaining authority and therefore such order of detentionis liable to be quashed. In support of such contention, learnedcounsel for the petitioner has placed reliance upon severaldecisions of this Court as well as the Supreme Court.4. Learned counsel appearing for the State has combatedthe aforesaid contention and has submitted that on the date whenthe order of detention was passed, the detenu was already incustody for more than 70 days and therefore there was an imminentpossibility of the detenu being released on bail by filing anotherbail application. Therefore, it cannot be said that theconclusion of the detaining authority is not based on cogentmaterial and such subjective satisfaction of the detainingauthority is not liable to be interfered with in a petition under Article 226 of the Constitution of India.

In the decision reported in 2005(4) CTC 497 (K.THIRUPATHI v. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR,TIRUCHIRAPALLI DISTRICT AT TIRUCHIRAPALI AND ANOTHER), a FullBench of this Court, after referring to several decisions of the Supreme Court, ultimately observed :-"24. The detaining authority is required to followstrictly and scrupulously the forms and rules of lawprescribed in that behalf or by the statutory provisionunder which the order of detention is being made afterarriving at a subjective satisfaction. In the event ofany deviation or violation of the statutory provisionsor infraction of constitutional guarantees, the Courtswill not hesitate to quash the orders of detention. Whatever be the jurisdiction to detain and the slightestinfraction of the constitutional guarantee would lead tothe detenu being set at liberty.25. It is by now well settled that in all detentionlaws, the orders of detention and its continuance ofdetention should be in conformity with Article 22 of the Constitution of India and slightest infraction of the Constitutional protection enshrined therein would be avalid ground to set the detenu at liberty.26. There must be cogent material before the Authority passing the detention order for inferring thatthe detenu was likely to be released on bail. Thisinference must be drawn from material on record and mustnot be the ipse dixit of the Authority passing thedetention order.27. In the case of a person in custody a detentionorder can validly be passed if the authority passing theorder is aware of the fact that he is actually in https://hcservices.ecourts.gov.in/hcservices/ custody; if he has reason to believe on the basis ofreliable material placed before him -(a) that there is a real possibility of his beingreleased on bail, and(b) if it is felt essential to detain him toprevent him from so doing. If the authority passes anorder after recording its satisfaction in this behalf, such an order cannot be struck down on the ground thatthe proper course for the authority was to oppose thebail and if bail is granted notwithstanding suchopposition to question it before a higher Court. "

Learned counsel for the petitioner has also placedstrong reliance upon a decision of the Supreme Court reported in(2006)1 M.L.J.(Crl.) 539 (T.V. SARAVANAN alias S.A.R. PRASANNAVENKATACHARIAR CHATURVEDI v. STATE, THROUGH SECRETARY ANDANOTHER). The said decision was rendered in an appeal filedagainst the judgment of this Court in HCP.No.34 of 2005, wherethe Habeas Corpus Petition challenging the order of detention hadbeen rejected. In the appeal before the Supreme CourtSenior Counsel for the appellant had advanced acontention that, ". . . there was no imminent chance of his beingreleased on bail and yet the detaining authority, evenin the absence of any material to raise an apprehensionthat he may be released on bail in near future andcontinue with his nefarious activities, passed theimpugned order of detention. "While dealing with such contention, the Supreme Courtextracted the relevant recitals in the grounds of detention to theeffect :-"I am aware that Thiru Venkata Saravanan aliasS.A.R. Prasanna Venkatachariyar Chaturvedi is in remandin Central Crime Branch, Crime Nos.582 of 2004, 592 of2004, 594 of 2004, 598 of 2004, 601 of 2004 and 602 of2004 and a bail application was moved before the Principal Sessions Court in Crl.M.P.No.11163 of 2004 in Central Crime Branch, Crime No.582 of 2004 and the samewas dismissed on 17.11.2004.

Learned counsel for the petitioner has also invitedour attention to the decision of the Supreme Court reported in(2006) 9 SCC 711 (A. SHANTHI (SMT) v. GOVERNMENT OF TAMIL NADU ANDOTHERS), which was again a decision rendered in an appeal againstdismissal of Habeas Corpus Petition by the Madras High Court. Inthe said case, it was observed:-"3. One of the grounds urged in this appeal is thatthe detaining authority apprehending the imminentpossibility of release of the detenu considered itnecessary to detain him under the provisions of the Tamil Nadu Prevention of Dangerous Activities of https://hcservices.ecourts.gov.in/hcservices/ Bootleggers and Slum Grabbers Act, 1982 (Act 14 of1982). It is not disputed before us that the bailpetitions filed on behalf of the detenu in those caseshad been rejected and in fact no bail application waspending on the date on which the detention order waspassed. However, the detaining authority in the groundsof detention stated that, "I am aware that Mr.Athikesavan is in remand in Central Crime Branch 'X'Crime Nos.315 of 2005 and 328 of 2005 and has moved abail application before the 3rd Metropolitan MagistrateCourt, George Town, Chennai, in Crl.MP.No.140 of 2005and the same was dismissed. I am also aware that thereis imminent possibility of his coming out on bail byfiling another bail application for the above casesbefore the Principal Sessions Court or the Hon'ble HighCourt since in similar cases bail orders are granted bythe Sessions Court or the High Court after a lapse fortime. "4. In similar circumstances, this Court in T.V.Saravanan v. State directed release of the detenu. Counsel for the State is unable to distinguish thatjudgment. This Court in T.V. Saravanan has held the"imminent possibility" of the appellant coming out onbail is merely the ipse dixit of the detaining authorityunsupported by any material whatsoever. There was nocogent material before the detaining authority on thebasis of which the detaining authority could besatisfied that the detenu was likely to be released onbail. The inference has to be drawn from the availablematerial on record. In the absence of such material onrecord the mere ipse dixit of the detaining authority isnot sufficient to sustain the order of detention. "

On a perusal of the decisions of the Supreme Court and the FullBench decision of this Court, it is apparent that where the detenuis already in custody the order of detention can be passed, ifthere is imminent possibility of the detenu being released onbail. However, while coming to such a conclusion, the mere baldstatement or the ipse dixit of the detaining authority would notbe sufficient and such conclusion should be passed on cogentmaterial. It is of course true as observed by the Full Bench thatit is not possible to lay down in general terms as to whatmaterials would be sufficient to come to such a conclusion and thevalidity of the order would depend upon facts and circumstancesavailable in each case. https://hcservices.ecourts.gov.in/hcservices/

Keeping in view the ratio of the aforesaid decisionsand more particularly the opinion expressed by the Full Bench aswell as the decision of the Supreme Court in (2006) 1 SCC (Cri)593 (cited supra) notwithstanding the seriousness of theallegations against the detenu, particularly relating to theground case, we are constrained to come to the conclusion that theobservation of the detaining authority "that there is a realpossibility of his coming out on bail by filing anotherapplication before the same Court or Higher Courts since insimilar cases bails are granted by the same Court or Higher Court"is mere ipse dixit of the detaining authority without any cogentmaterial. The offences allegedly committed by the detenu and thebackground in which such offences were allegedly committed clearlyindicate that the offences are not of a routine nature wherein onecan assume that bail would be granted almost as a matter of courseeither by the Sessions Judge or by the High Court.

From the materials on record, it is apparent that atthe time when such detention order was passed, the investigationwas still in progress and therefore the normal assumption, whichis usually made that an accused may be released on bail oncompletion of the investigation, was also not available to bemade.

Similarly the possibility of an accused beingreleased on bail by invoking the provisions contained in Section167(2)(proviso) of the Code of Criminal Procedure could not havebeen countenanced at that stage as such benefit is available onlywhen chargesheet is not filed within the stipulated period of 60days or 90 days, as the case may be and not otherwise. In thepresent case, the offence being punishable by death or lifeimprisonment, such statutory bail contemplated under Section 167(2)proviso could be availed only after 90 days. Such deadline wasalso not round the corner impelling the authority to conclude thatpossibility of getting statutory bail loomed large. Even afterrejection of the first bail application, a fresh bail applicationhad not been filed. In the above background, thus, in the absenceof any material, the conclusion of the detaining authority thatthere was a real possibility of the detenu coming out on bail byfiling another bail application was not based on any cogentmaterial and was rather the mere ipse dixit of the detainingauthority.