CORAMTHE HONOURABLE MR v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.06.2007CORAMTHE HONOURABLE MR.JUSTICE P.K.MISRAANDTHE HONOURABLE MRS.JUSTICE R.BANUMATHIH.C.P.No.232/2007Ravi @ Mattu Ravi.. PetitionerVs.1.State rep. By its Secretary to GovernmentProhibition and Excise DepartmentFort St.George, Chennai-9.2.Commissioner of Police,Greater Chennai, Egmore, Chennai.. RespondentsPRAYER: Petition filed under Article 226 of the Constitution ofIndia for issue of Writ of Habeas Corpus directing the respondentsto produce the detenu Ravi @ Mattu Ravi son of Ranganathan, who isnow detained in Central Prison, Chennai in pursuance of thedetention order passed by the 2nd respondent dated 20.11.2006 in286/BDFGISSV/2006 before this Court and set him at liberty.For Petitioner: Mr.S.Swamidoss ManoharanFor Respondent: Mr.Babu Muthu Meeran, Addl.PP.O R D E RR.BANUMATHI, J.Challenge in this HCP is to the detention order whereby thepetitioner was detained branding him as 'Goonda' 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 detenu had earlier come to adverse notice in five cases– Cr.No.502/2004 [V1 Villivakkam P.S. under Ss.341, 323 & 506(2)IPC]; Cr.No.449/2005 [V1 Villivakkam P.S. under Ss.341, 384 & 506 https://hcservices.ecourts.gov.in/hcservices/ (2) IPC]; Cr.No.597/2006 [V1 Villivakkam P.S. under Ss.323 & 307IPC]; Cr.No.756/2006 [V1 Villivakkam P.S. under Ss.756 IPC] andCr.No.759/2006 [V1 Villivakkam P.S. under Ss.341, 384 & 506(2)IPC]. Ground case relates to the occurrence on 12.11.2006, wherethe detenu is alleged to have committed robbery, relieving thedefacto complainant of Rs.700/-, regarding which a case wasregistered in Cr.No. 763/2006 under Ss.341, 392 r/w 397, 336 and506(2) IPC. The petitioner was arrested on 13.11.2006 and wasremanded to judicial custody. On being satisfied that if the detenucomes out on bail he would act in a manner prejudicial to themaintenance of public order, the detention order was clamped on thepetitioner.3.Though several contentions were raised in the grounds andargued as well, we do not deem it necessary to go into each andevery one of them, since in our view, the HCP is to be allowed onthe ground of non-application of mind as to the number of cases inwhich the detenu was arrested and lack of cogent materials beforethe Detaining Authority to satisfy himself as to the imminentpossibility of the detenu being released on bail.4.The relevant part of the detention order which deals withthis aspect of the matter is under :-"4.I am aware that Thiru.Ravi @ Mattu Ravi is in remandin V-1 Villivakkam Police Station Crime No.763/2006 and hehas not moved any bail application so far. I am also awarethat there is a real possibility of his coming out on bail byfiling a bail application before the same Court or HigherCourts since in similar cases bails are granted by the sameCourt or Higher Courts".It is seen that the Detaining Authority's satisfaction consists oftwo parts viz., (i)the detenu is in custody in Cr.No.763/2006; (ii)there is a real possibility of his coming out on bail for the abovecase by filing a bail application.5.Drawing attention of Court to various pages of paper book,the learned Counsel for the petitioner has contended that thedetenu was under arrest and in custody not only in the ground caseCr.No.763/2006, but also in other cases and there is no properapplication of mind in this regard. It is seen from the ArrestIntimation [page 213 of the paper book] that the detenu wasarrested in connection with Cr.Nos.763 of 2006, 756/2006 and759/2006. In the Arrest Memo given to the detenu's wife Vasanthi[page 215 of the paper book], it was informed that the detenu wasarrested in Cr.Nos.763/2006 and 759/2006. Request for remand wassought for for all three cases viz., Cr.Nos.763 of 2006, 756/2006and 759/2006 [page 217 of the paper book]. As seen from the remandorder, the petitioner was remanded only in ground case Cr.No.763/2006. When the petitioner was arrested in all three cases, and https://hcservices.ecourts.gov.in/hcservices/ Remand Request was also made for all three cases, material onrecord shows as if the petitioner was remanded to judicial custodyonly in the ground case viz., Cr.No.763/2006. There is noindication of the awareness of the Detaining Authority that thedetenu was arrested in connection with other Cr.Nos.756/2006 and759/2006. There is non application of mind on the part of theDetaining Authority on this relevant fact, which in our opinionwould vitiate the detention order.6.In fact, the petitioner had sent representation requestingto furnish remand orders in Cr.Nos.756/2006 and 759/2006 and informhim how he is involved in the adverse case in Cr.No.756/2006. Theauthority has glossed over the same by sending reply stating thatthe other cases are only referred cases and not relied upon. In ourview, the detenu had a right to know whether he was actuallyremanded or not in other cases.7.The fact that the detenu was arrested in connection withother cases is not reflected in the grounds of detention. Even ifthe detenu is released on bail in the ground case Cr.No.763/2006,since the detenu was arrested in other cases as well, by filingbail application in the ground case Cr.No.763/2006, there is noimminent possibility of the detenu being released on bail.8.After elaborate consideration of various case laws on thisaspect, in 2005 (2) LW Crl.946 [K.Thirupathi Vs. DistrictMagistrate and District Collector, Tiruchirapalli District &another], Justice P.Sathasivam, speaking for the Full Bench hasanswered the point of reference as under:-"26.There must be cogent material before the Authoritypassing the detention order for inferring that the detenu waslikely to be released on bail. This inference must be drawnfrom material on record and must not be the ipse dixit of theAuthority passing the detention order.27.In the case of a person in custody, a detention ordercan validly be passed if the authority passing the order isaware of the fact that he is actually in custody; if he hasreason to believe on the basis of reliable material placedbefore him (a)that there is a real possibility of his beingreleased on bail, and (b)if it is felt essential to detainhim to prevent him from so doing. If the authority passes anorder after recording its satisfaction in this behalf, suchan order cannot be struck down on the ground that the propercourse for the authority was to oppose the bail and if bailis granted notwithstanding such opposition to question itbefore a higher Court". https://hcservices.ecourts.gov.in/hcservices/

9.In 2006(1) SCC Crl 593 [T.V.Saravanan @ S.A.R.PrasanaVenkatachariar Chaturvedi] and in 2006(3) SCC Crl 371 [A.ShanthiVs.Govt. Of T.N. and others], the Supreme has quashed the detentionorder on the ground that there was no cogent material before theDetaining Authority on the basis on which the Detaining Authoritysatisfied itself that the detenu was likely to be released on bail.In the absence of such material on record the mere ipse dixit ofthe detaining authority is not sufficient to sustain the order ofdetention.10.Applying the ratio laid down by the Supreme Court, we aresatisfied that the order of detention cannot be upheld in thiscase. This HCP is allowed and the detention order is quashed. Thedetenu is directed to be set at liberty forthwith unless he isrequired in connection with any other case.tarSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary to GovernmentProhibition and Excise DepartmentFort St.George, Chennai-9.2.The Commissioner of Police,Greater Chennai, Egmore, Chennai3.The Public Prosecutor, High Court, Madras4.The Superintendent Central Prison, Chennai.5. The Joint Secretary to Government,Public (Law and Order) Department,Fort St George, Chennai 9.SCD(CO)SR/28.6.2007H.C.P.No.232/2007