Karupayee.. v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 9-6-2009CORAMTHE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE RAJA ELANGOHCP No.476 of 2009Karupayee.. Petitionervs1.The State of Tamil Nadu Represented by Secretary to Government of Tamil Nadu Home, Prohibition and Excise Department Fort St. George, Chennai 600 009.2.The District Collector andDistrict Magistrate Theni District3.The Superintendent of Prison Madurai Central Prison Madurai4.The Secretary Advisory Board 32, Rajaji Salai Singaraveler Maligai Chennai Collectorate Chennai.. RespondentsHabeas corpus petition filed under Article 226 of theConstitution of India praying to issue a writ of habeas corpuscalling for the entire records connected with the detention order ofthe second respondent in Detention Order No.1/2009 dated 4.2.2009 andquash the same and direct the respondents to produce the body andperson of the detenu namely Illangovan, son of Otchathevar, agedabout 29 years detained at Madurai Central Prison before this Courtand set him at liberty forthwith.For Petitioner: Mr.R.AlagumaniFor Respondents: Mr.V.R.Balasubramanian Additional PublicProsecutor https://hcservices.ecourts.gov.in/hcservices/ ORDER(Order of the Court was made by S.J.MUKHOPADHAYA, J.)The mother of the detenu has filed this petition against thedetention order passed by the second respondent in Detention OrderNo.1/2009 dated 4.2.2009, whereby the detenu Illangovan has beenbranded as Goonda and detained under the Tamil Nadu Act 14 of 1982.2.The main plea taken by the petitioner, is that there was noapplication of mind on the part of the detaining authority as thewords and expressions "imminent possibility of the detenu beingreleased on bail" or "likelihood of the detenu coming out on bail" or"release on bail was likely" or "release on bail in the immediatefuture" or "release on bail at the earliest" indicating that therelease would likely to happen very soon, have not been mentioned. 3.Reliance was placed on the Full Bench decision of this Courtin K.Thirupathi V. District Magistrate and District Collector,Tiruchirapalli, and another (2005 MLJ (CRL.) 1101) and the DivisionBench decision in A.Thirumavalavan V. The Government of Tamil Naduand two others (2006-1-L.W. (CRL.) 31).4.We have heard the learned Counsel appearing on behalf of thepetitioner and the learned Additional Public Prosecutor for the State.5.The question whether the usage of the word "imminent" isnecessary or the other convincing expressions can be used by thedetaining authority fell for consideration before the Full Bench ofthis Court in the case of K.Thirupathi (supra) 2005 MLJ (CRL.) 1101.In the said case, the Full Bench has observed as follows:"27.In the case of a person in custody a detention order canvalidly 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 hisbeing released on bail, and (b) if it is felt essential todetain him to prevent him from so doing. If the authoritypasses an order after recording its satisfaction in thisbehalf, such an order cannot be struck down on the groundthat the proper course for the authority was to oppose thebail and if bail is granted notwithstanding such oppositionto question it before a higher Court.28.It is neither possible nor advisable to catalogue thetypes of materials which can form the basis of a detentionorder under the Act. That will depend on the facts andsituation of a case. That is why there is no provision inthe Act in that regard and the matter is left to thediscretion of the detaining authority. However, the factsstated in the materials relied upon should be true andshould have a reasonable nexus with the purpose for whichthe order is passed. https://hcservices.ecourts.gov.in/hcservices/

29.In view of the above, we hold that strict insistence ofthe usage of the word "imminent" is not necessary and theother convincing expressions like "real possibility", "verylikely", or "most likely" can be used by the detainingauthority to reflect its satisfaction with regard toimmediate release of the detenu on bail. We answer thereference accordingly."6.From the aforesaid Full Bench decision, it would be evidentthat the Court while leaving it open to catalogue the types of thematerials which can form the basis of the detention order under theAct, has observed that the strict insistence of the usage of the word"imminent" is not necessary. That means the words "imminent" or"real possibility" or "very likely" or "most likely to be released onbail" or any other appropriate sentence can be used. 7.There is no particular charm in the expressions "imminentpossibility of the detenu being released on bail" or "likelihood ofthe detenu coming out on bail" or "release on bail was likely" or"release on bail at the earliest". It is the detaining authority whocan choose any of the aforesaid expressions or any other expressionsindicating that the release of the detenu would likely to happen verysoon. So far as the case of Mr.A.Thirumavalavan reported in 2006-1-L.W. (CRL.) 31, is concerned, that was the case in which thedetaining authority had not reflected its application of mind; but,it was only expressed that there was possibility of moving a bail andcoming out on bail by filing bail application in the Court. In thatcase, subjective satisfaction was not made that there was imminentpossibility or likelihood of the release of the detenu which may bedetrimental to the society. So far as the present case is concerned,the detaining authority having noticed the records and facts hasstated that he was aware that the detenu is in remand in connectionwith Allinagaram Police Station Cr.No.62/2009 and his remand wasextended by the Court up to 13.2.2009. The detaining authority hasobserved that if the detenu comes out after the date, he will indulgein future activities. That means the activities which areprejudicial to the maintenance of public order and detrimental to thesociety. How the detenu will come out after the extension date hasnot been mentioned since it cannot be forecasted as to whether infuture the Court will extend the remand and the detenu may file apetition for bail and may be released. Therefore, the mode and themanner in which the detenu may be released from custody in future ifnot known, it is always open to the detaining authority to come to adefinite conclusion as to whether the detenu will indulge in similaractivities in future if he comes out of the jail. In view of suchspecific observation made in the present case, we are not inclined toaccept the suggestion that the detaining authority has not appliedits mind while passing the order of detention. In the absence ofany merit, we have no option but to dismiss the case. https://hcservices.ecourts.gov.in/hcservices/

8.Accordingly, this habeas corpus petition is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarnsv/To:1.The Secretary to Government of Tamil Nadu Home, Prohibition and Excise Department Fort St. George, Chennai 600 009.2.The District Collector andDistrict Magistrate Theni District3.The Superintendent of Prison Madurai Central Prison Madurai.4.The Secretary Advisory Board 32, Rajaji Salai Singaraveler Maligai Chennai Collectorate Chennai5.The Public Prosecutor High Court, Madras.HCP No.476 of 2009MBS(CO)RVL 25.06.2009