CORAMTHE HONOURABLE MR v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.07.2007CORAMTHE HONOURABLE MR.JUSTICE P.K.MISRAANDTHE HONOURABLE MRS.JUSTICE R.BANUMATHIH.C.P.No.18/2007Saroja.. PetitionerVs.1.The State of Tamil Nadu,rep. By its Secretary,Prohibition and Excise DepartmentFort St.George, Chennai-9.2.Commissioner of Police,Trichirapalli city,Trichy District... Respondents.PRAYER: Petition filed under Article 226 of the Constitution ofIndia for issue of Writ of Habeas Corpus to produce the body of thePetitioner's son Krishnamoorthy @ Krishnan who is in CentralPrison, Trichy before this Court and set him at liberty.O R D E R(Order of the Court was made by R.BANUMATHI, J.)Challenge in this Habeas Corpus Petition is to the detentionorder dated 23.12.2006 whereby petitioner's son Krishnamoorthy @Krishnan was branded as "Goonda" as contemplated under Tamil NaduPrevention of Dangerous activities of Bootleggers, Drug Offenders,Forest Offenders, Goondas, Immoral Traffic Offenders, SandOffenders, Slum Grabbers and Video Pirates Act, 1982 [Tamil NaduAct 14 of 1982].2.The question for consideration is whether it is necessaryfor the Detaining Authority to take into consideration any bailapplication filed by the detenu and bail order passed by thecriminal Court on the said application, as a matter of Rule to beplaced before the Detaining Authority and whether non-furnishing ofcopy of the said bail application and order to the detenu wouldvitiate the detention order. https://hcservices.ecourts.gov.in/hcservices/

3.The detenu had earlier come to adverse notice in two casesin Tiruchi Cantonment P.S. [Cr.No.1200/2006 under Ss.395 and 3976IPC]; Trichi Woraiyur P.S. [Cr.No.826/2006 under Sec.397 r/w 397IPC]. The immediate cause for passing the detention order is theoccurrence on 12.11.2006 wherein the detenu is alleged to havesnatched gold chain from the defacto complainant, regarding which acase was registered in Cr.No.904/2006, Woraiyur P.S. On beingsatisfied that if the detenu comes out on bail he will indulge infuture activities which would be prejudicial to the maintenance ofpublic order, the impugned detention order was clamped on thedetenu.4.Even though several contentions were raised and argued aswell, the learned Counsel mainly projected that the detention orderis vitiated due to non furnishing of copy of bail application.Drawing our attention to page 73 of the paper book, the learnedCounsel for the petitioner has contended that the detenu wasgranted bail in Cr.No.944/2006 while so, the bail application filedin the said case was not placed before the Detaining Authoritywhich would have greatly influenced the mind of the DetainingAuthority before passing the detention order.5.It is seen from paper book page no.73 bail was granted asper the order in CMP No.5104/2006. But page no.73 does not reflectthe Crime number. In the affidavit, though the Sponsoring Authorityhas stated about the grant of bail in Cr.No.904/2006, copy of bailapplication does not seem to have been placed before the DetainingAuthority on 21.12.2006. Detention order was clamped on the detenuon 23.12.2006. The learned counsel for petitioner has contendedthat detenu was released on bail and was at liberty at the time ofpassing the order of detention and the Detaining Authority has tonecessarily rely upon grant of bail. In such case, it is contendedthat bail application and the order granting bail shouldnecessarily be placed before the authority and the copies shouldalso be supplied to the detenu and non-supply of copy of bailapplication would vitiate the detention order.6.In Ahamedkutty Vs.Union of India [1990(2) SCC 1 : 1990 SCC(Cri) 258], Supreme Court has held that it was mandatory for theDetaining Authority to consider the contents of the bailapplication and the order made thereon and the same having not beendone, the order of detention is vitiated. In the said case, SupremeCourt has held :"7.Considering the facts in the instant case, the bailapplication and the bail order were vital materials forconsideration. If those were not considered the satisfactionof the Detaining Authority itself would have been impairedand if those had been considered, they would be documentsrelied on by the Detaining Authority though not specifically https://hcservices.ecourts.gov.in/hcservices/ mentioned in the annexure to the order of detention and thoseought to have formed part of the documents supplied to thedetenu with the grounds of detention and without them thegrounds themselves could not be said to have been complete.We have, therefore, no alternative but to hold that itamounted to denial of the detenu's right to make an effectiverepresentation and that it resulted in violation of Article22(5) of the Constitution of India rendering the continueddetention of the detenu illegal and entitling the detenu tobe set at liberty in this case".7.Ahamedkutty's case does not lay down a mandatory principlein law that in every case, application for bail and the order madethereon shall be placed before the Detaining Authority. Explainingthe above observation in the said Judgment of the Ahamedkutty'scase, in 1992(1) SCC 1 : 1992 SCC (Cri) 1 [Abdul Sathar IbrahimManik Vs.Union of India] the Supreme Court has held as follows :-(1)A detention order can validly be passed in the caseof a person who is already in custody. In such a case, itmust appear from the grounds that the authority was awarethat the detenu was already in jail.(2)When such awareness is there then it should furtherappear from the grounds that there was enough materialnecessitating the detention of the person in custody. Thisaspect depends on various considerations and facts andcircumstances of each case. If there is a possibility of hisbeing released and on being so released he is likely toindulge in prejudicial activity then that would be one suchcompelling necessity to pass the detention order. The ordercannot be quashed on the ground that the proper course forthe authority was to oppose the bail and that if bail isgranted notwithstanding such opposition the same can bequestioned before a High Court.(3)If the detenu has moved for bail then application andthe order thereon refusing bail even if not placed before theDetaining Authority, it does not amount to suppression ofrelevant material. The question of non-application of mindand satisfaction being impaired does not arise as long as theDetaining Authority was aware of the fact that the detenu wasin actual custody.(4)Accordingly the non-supply of the copies of bailapplication or the order refusing bail to the detenu cannotaffect the detenu's right of being afforded a reasonableopportunity guaranteed under Article 22(5) when it is clearthat the authority has not relied or referred to the same.(5)When the Detaining Authority has merely referred tothem in narration of events and has not relied upon them, https://hcservices.ecourts.gov.in/hcservices/ failure to supply bail application and order refusing bailwill not cause any prejudice to the detenu in making aneffective representation. Only when the Detaining Authorityhas not only referred has not only referred to but alsorelied upon them in arriving at the necessary satisfactionthen failure to supply these documents, may, in certain casesdepending upon the facts and circumstances amount toviolation of Article 22(5) of the Constitution of India.Wherein in a given case the Detaining Authority hascasually or passingly referred to these documents or alsorelied upon them depend upon the facts and the grounds, whichaspect can be examined by the Court.(6)In a case, where detenu is released on bail and is atliberty at the time of passing the order of detention, thenthe Detaining Authority has to necessarily rely upon them asthat would be a vital ground for ordering detention. In sucha case the bail application and the order granting bailshould necessarily be placed before the authority and thecopies should also be supplied to the detenu.8.Referring to Abdul Sathar's case and holding thatrequirement of placing the application for bail and the order madethereon are not always mandatory and that such requirement woulddepend upon the facts of each case, in 2005 SCC Crl.1514[K.Vardharaj Vs. State of Tamil Nadu & another], the Supreme Courthas held as under :".... [T]herefore, we cannot read into the observationof this Court that in every case where there is anapplication for bail and an order made thereon, the DetainingAuthority must as a rule be made aware of the saidapplication and order made thereon. In our opinion the needof placing such application and order before the DetainingAuthority would arise on the contents of the documents. Ifthe documents do contain some material which on facts of thatcase would have some bearing on the subjective satisfactionof the Detaining Authority then like any other vital materialeven this document may have to be placed before the DetainingAuthority. In our opinion, the Judgment of this Court inAhamedkutty does not lay down a mandatory principle in lawthat in every case the application for bail and the ordermade thereon should be placed before the Court. We aresupported in this view of ours by the Judgment relied on bythe Judgment relied on by the State in Abdul Sathar................. From the above observations, it is clear that placingof the application for bail and the order made thereon arenot always mandatory and such requirement would depend uponthe facts of each case. We are in respectful agreement withthe view expressed by the above said two judgments which inour opinion are not conflicting". (Emphasis added) https://hcservices.ecourts.gov.in/hcservices/

9.It is well settled that requirement of placing bailapplication before the Detaining Authority would depend upon factsof each case and the notice of which the Detaining Authority oughtto take notice would also depend upon facts of each case. Now wewill consider whether in the instant case, facts require theDetaining Authority to be aware of the contents of the bailapplication and the order thereon. As noted earlier, in CMPNo.5104/2006, bail was granted by the Judicial Magistrate on21.12.2006. In the said order, [at page 73 of the Paper Book],crime number is not mentioned. In its affidavit filed before theDetaining Authority, the Sponsoring Authority has averred that inCMP No.5104/2006, bail was granted to the detenu in the ground casein Cr.No.904/2006. Under such circumstances, as such, nonfurnishing of bail application cannot be said to be fatal.10.However facts and few allegations reflected in the bailorder constrains us to take the view that there was requirement offurnishing of copy of bail application before the DetainingAuthority and furnishing copy of the bail application to thedetenu. Objecting grant of bail before the Judicial MagistrateCourt, that learned Assistant Public Prosecutor has stated that thedetenu is involved in chain snatching cases and several murdercases. The objection raised for grant of bail reads "gy bfhiytHf;Ffspy; bjhlh;g[ ,Ug;gjhft[k;. gpzapy; tpLtpj;jhy;jiykiwthfptpLthh; vd;Wk; Ml;nrgpf;fg;gl;Ls;sJ". As noticed earlier,adverse cases only relate to robbery cases and does not indicateinvolvement of detenu in murder cases. Inspite of such objectionand alleged involvement of the detenu in a serious offence, Courthas proceeded to grant bail. In such view of the matter, in ouropinion, bail application is a vital document, which ought to havebeen placed before the Detaining Authority. In our opinion, bailapplication and order is a vital document which the DetainingAuthority ought to have considered it and mere awareness on itspart about grant of bail is not sufficient. In the facts andcircumstances of this case, we hold that the Sponsoring Authoritywas expected to place the bail application before the DetainingAuthority and non-furnishing of copy of bail application to thedetenu has the effect of vitiating the Detaining Authority. Thelearned Addl. Public Prosecutor has placed reliance upon thedecision of the Supreme Court reported in 2006(2) SCC Cri 90[Sunila Jain Vs. Union of India and another] in the said case, nonsupply of a copy of the bail application was raised as a contentionfor setting aside the order of detention and the Supreme Court cameto the conclusion that non supply of the bail application in thefacts and circumstances of the case would not have the effect ofvitiating the order of detention.11.Referring to Sunila Jain's case, in 2007(1) MLJ Crl. 18[Jarinabegum Vs.State of Tamil Nadu and another] to which one of us https://hcservices.ecourts.gov.in/hcservices/ was a member [Justice P.K.MISRA], this Court has held "in thepeculiar facts of the said case, the Supreme Court came to theconclusion that non-furnishing of the bail application wasimmaterial". The case in hand is distinguishable on facts.12.As already noticed by us, in the present case, nonfurnishing of copy of bail application to the detenu has the effectof vitiating the detention order. Therefore, the detention order isliable to be quashed.13.In the result, the detention order is set aside and thispetition is allowed. The detenu is directed to be set at libertyforthwith unless he is required in connection with any other case.TarSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary to Government,Prohibition and Excise DepartmentFort St.George, Chennai-9.2.The Commissioner of Police,Trichirapalli City, Trichy District.3.The Superintendent, Central Prison, Tiruchirappalli.4. The Joint Secretary to the Government of Tamil Nadu,Public (Law and Order) Department,Fort St George, Chennai 9.5.The Public Prosecutor, High Court, MadrasVC(CO)SR/24.7.2007H.C.P.No.18/2007