D.Amalraj v. The Secretary to Government Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. & Ors.

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 08.12.2011CORAM:THE HONOURABLE MR.JUSTICE M.JAICHANDRENANDTHE HONOURABLE MR.JUSTICE S.NAGAMUTHUHabeas Corpus Petition (MD).No.805 of 2011D.Amalraj: PetitionerVs.1.The Secretary to Government Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.2.The District Collector and District Magistrate Dindigul, Dindigul District.3.The Superintendent of Prison, Madurai Central Prison, Madurai. : RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India toissue a writ of Habeas Corpus to call for the records in pursuant to theproceedings of the second respondent in Detention Order 10/2011 dated15.08.2011 and quash the same and direct the respondents to produce thebody and person of the detenu, namely, D.Amalraj, son of Durairaj, agedabout 50 years, detained in Madurai Central Prison, before this Court andset him at liberty forthwith.For Petitioner: Mr.R.AlagumaniFor Respondents: Mr.T.MohanAdditional Public Prosecutor ORDER [Judgment of the Court was delivered by M.JAICHANDREN,J.]This Habeas Corpus Petition has been filed to call for the recordsrelating to the order of the second respondent, dated 15.08.2011, made inDetention Order No.10/2011, and to quash the same, and to produce thedetenu, namely, D.Amalraj, Son of Durairaj, aged about 50 years, confinedin the Madurai Central Prison, before this Court and set him at liberty.2.The petitioner has stated that the second respondent had passed theimpugned detention order, dated 15.08.2011, under Sub-section (1) ofSection 3 of the Tamil Nadu Prevention of Dangerous Activities ofBootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral TrafficOffenders, Sand Offenders, Slum-grabbers and Video Pirates Act,1982.('Tamil Nadu Act 14 of 1982') read with the orders issued by theGovernment in G.O.(D).No.130, Home, Prohibition and Excise (XVI)Department, dated 18.07.2011, under sub-section (2) of section 3 of thesaid Act, directing the detention of D.Amalraj, in the Madurai CentralPrison, Madurai, terming him as a `Drug Offendor'. https://hcservices.ecourts.gov.in/hcservices/

23. Even though various grounds had been raised in the Habeas CorpusPetition filed by the petitioner, the learned counsel appearing on behalfof the petitioner had placed emphasis on the grounds, mentionedhereunder, while stating that the impugned detention order passed by theDetaining Authority is bad in the eye of law. He had submitted thatthere was clear non-application of mind, on the part of the DetainingAuthority, while passing the detention order against the detenu. 4. The learned counsel appearing for the petitioner had referred toParagraph No.7 of the grounds of detention, which reads as follows:“5. I am aware that Thiru.D.Amalraj is now in remand atCentral Prison, Madurai in connection with Dindigul NarcoticIntelligence Bureau CID Police Station Cr.No.140/2011 U/s.8 (c)r/w.20(b) (ii) (B) NDPS Act. He has not filed any bailapplication sofar. If he is let to remain at large, he willindulge in such activities in future, which will be prejudicialto the maintenance of Public Order and Public Health. Further,the recourse of normal criminal law will not have the desiredeffect of effectively preventing him from indulging in suchactivities which are prejudicial to the maintenance of PublicOrder and Public Health. From the above materials, I amsatisfied that the said Thiru.D.Amalraj is a 'Drug Offender' andthere is a compelling necessity to detain him in order toprevent him from indulging in such further activities in future,which are prejudicial to the maintenance of Public Order andPublic Health under the provisions of the Tamil Nadu Act 14 of1982.” 5. He had further submitted that it is clear, from the aboveparagraph, that the Detaining Authority was aware that the detenu hadbeen remanded in custody, in Crime No.140 of 2011, on the file of theDindigul Narcotic Intelligence Bureau CID Police Station, and that nobail application had been moved in the said case, on behalf of thedetenu. Thus, the statement of the Detaining Authority that the detentionorder was being passed, in order to prevent the detenu from indulging inactivities prejudicial to the maintenance of public order, has been made,without any materials on record. As such, it is clear that it is an ipsedixit of the Detaining Authority. It clearly shows the non-application ofmind, by the Detaining Authority, while passing the detention order. 6. The learned counsel had also submitted that the DetainingAuthority has not made out a case against the detenu to show that therewas an imminent or a real possibility of the detenu coming out on bail.In fact, the Detaining Authority had not even mentioned about theexistence of an imminent possibility or a real possibility of the detenubeing released on bail and that he would induge in activities prejudicialto the maintenance of public order, thereafter. 7. The learned counsel had further submitted that the DetainingAuthority had not mentioned about similar cases, wherein, bail orders hadbeen granted, by the Courts concerned. 8. The learned counsel for the petitioner had relied on the decisionof the Supreme Court, in Rekha Vs. State of Tamilnadu (2011 (5) SCC 244), https://hcservices.ecourts.gov.in/hcservices/ 3wherein, it has been held that, where a detention order is passed againsta person already in custody, there should be a real possibility of hisrelease on bail, if he has moved a bail application, and if it ispending. It follows, logically, that if no bail application is pending,then there is no likelihood of the person in custody being released onbail, and hence, the detention order will be illegal. However, there canbe an exception to this rule, that is, where a co-accused, whose casestands on the same footing, had been granted bail. In such cases, theDetaining Authority can reasonably conclude that there is a likelihood ofthe detenu being released on bail, even though no bail application of hisis pending, since, most courts, normally, grant bail on this ground.However, details of such alleged similar cases must be given, withoutwhich, the bald statement of the authority cannot be believed. 9. The learned counsel had also submitted that, if a person isalready in prison, unless a co-accused in the alleged offence had alreadybeen released, it cannot be concluded that there is an imminentpossibility of the detenu coming out on bail, and that he would indulgein activities prejudicial to the maintenance of public order. Even insuch a case, the co-accused ought to have been involved in the committingof the alleged offence, similar to that of the detenu, in all aspects.The learned counsel for the petitioner had also submitted that there wereno cogent materials available before the Detaining Authority for thepassing of the detention order, based on his subjective satisfaction.10. Per contra, the learned Additional Public Prosecutor appearing onbehalf of the respondents had submitted that the Habeas Corpus Petition,filed on behalf of the detenu, is premature in nature. He had submittedthat the Habeas Corpus Petition has been filed even before the order ofdetention, passed by the Detaining Authority, had been considered by theAdvisory Board. Therefore, it is liable to be dismissed. He had reliedon the decision of the Kerala High Court, in R.P.Goyal Vs. State, AIR1974 Kerala 85 (V 61 C 24), wherein, it has been held that theprotection envisaged by the Constitution of an Advisory Board, forlooking into the defects in the passing of an order of detention, is asubstantial protection. Normally, therefore, before the order has becomefinal, on the application of mind relating to the question ofexistence or otherwise of the grounds justifying the detention, by theState Government, and the Advisory Board expressing its opinion, as towhether there is sufficient cause for such detention, it should not beinterfered with by the High Court, as it should not deal with thequestion on insufficient material. 11. The learned counsel appearing on behalf of the respondents hadrelied on the decision of the Supreme Court, in A.Geetha Vs. State ofTamilnadu (CDJ 2006 SC 702), wherein, it had been held that the onlyrequirement is that the Detaining Authority should be aware that thedetenu is already in custody and that he is likely to be released onbail. The conclusion that the detenu may be released on bail cannot beipse-dixit of the Detaining Authority. It would be sufficient ifthe Detaining Authority came to the conclusion, by his subjectivesatisfaction, based on the relevant materials. Normally, suchsatisfaction is not to be interfered with. https://hcservices.ecourts.gov.in/hcservices/

412. In view of the submissions made by the learned counsels appearingon behalf of the petitioner, as well as the respondents and on a perusalof the records available, and in view of the decisions cited supra, thisCourt is of the considered view that there was no proper application ofmind, by the Detaining Authority, in passing the impugned detention orderagainst the detenu. The non-application of mind by the DetainingAuthority is also clear from the fact that no bail application had beenmoved, even though the detenu was in remand, in the case relating toCrime No.140 of 2011, on the file of the Dindigul Narcotic IntelligenceBureau CID Police Station, at the time of the passing of the detentionorder. 13. The Detaining Authority had not stated that there was animminent or a real possibility of the detenu, who is in custody, comingout on bail and indulging in activities prejudicial to the maintenance ofthe public order. It is also noted that the Detaining Authority had notmentioned about the similar cases, wherein, bail orders had been granted,by the Courts concerned. 14. Even though the Detaining Authority had stated that there was acompelling necessity to detain the detenu, in order to prevent him fromindulging in activities, which would be prejudicial to the maintenance ofpublic order, no cogent materials were available on record tosubstantiate such a claim. 15. In a number of decisions this Court had held that cogentmaterials should be available for the Detaining Authority to arrive athis subjective satisfaction for the passing of the detention order. Thematerials available on record should be sufficient for the DetainingAuthority to arrive at his decision that the detenu is likely to beenlarged on bail and that, in such a case, he would indulge inactivities, which would be prejudicial to the maintenance of publicorder. Unless, such materials are available, the decision of theDetaining Authority to detain the detenu, by passing the detention order,would clearly be an indication of non-application of mind on the part ofthe Detaining Authority, in the passing of the detention order. 15.1) In Velumurgan @ Velu Vs. The Commissioner of Police (2005(1)CTC 577), it had been held as follows:“3…… unless there is a clear expression by the detaining authorityin the grounds of detention with reference to the imminent possibilityof the detenu being released on bail by filing bail application, thedetaining authority would not choose to pass the detention order. Inorder to prevent the detenu from committing the acts, which would bedisturbance to public order and public health, the detaining authorityshall consider the materials and on the basis of subjectivesatisfaction that there is imminent possibility of the detenu comingout on bail or likelihood of the detenu being released on bail, thedetaining authority may pass such an order under Tamil Nadu Act 14 of1982. When such an essential requirement, namely, the imminentpossibility of the detenu coming out on bail, is absent, it has to beheld that the order of detention is vitiated.” https://hcservices.ecourts.gov.in/hcservices/

515.2) In Kasthuri Vs. The District Collector and D.M., Kancheepuram(2009(1) MWN (Cr.) 418 (DB), this Court had set aside the detention orderpassed against the detenu stating that the Detaining Authority had notfollowed the guidelines prescribed by the Supreme Court, in D.K.Basu Vs.State of W.B, (1997 SCC (Cri) 92), and the other decisions of the SupremeCourt, wherein, the following facts were considered as being violative ofthe orders of preventive detention passed by the Detaining Authoritiesconcerned:“(a) Non-intimation of the detention order to any of the familymembers or friends within a reasonable time(b) Delay in considering the representation made by the detenu orany other person interested, on behalf of the detenu.(c) Non-supply of copies of material documents relied on by theDetaining Authority.(d) Furnishing illegible copies of documents, so as to preventdetenu from making effective representation as contemplated under theAct.(e) Non-furnishing of copies translated in the language known tothe detenu for making effective representation.(f) Non-application of mind by the Detaining Authority in havingsubjective satisfaction while passing the order.”15.3) In A.Murugesan Vs. Secretary to Government (2010 (1) MLJ(Crl.) 950), it had been held that, while no bail application had beenfiled on behalf of the detenu, before the Court concerned, it would betoo early for the detaining authority to record his satisfaction that thedetenu is likely to come out on bail or that, if he is let to remain atlarge, he would indulge in such activities, in future, which would beprejudicial to the maintenance of public order. Unless, cogent materialsare available, the subjective satisfaction of the detaining authoritywould be a clear indication of the non-application of mind by thedetaining authority in the passing of the detention order. 15.4) In Balaji Vs. State of Tamil Nadu (2010(1) CTC 820), aDivision Bench of this Court, referring to the decisions, in Chandru Vs.The Commissioner of Police, Thiruchirapalli City, Trichy and another(2007(1) TCJ 766, and Chelladurai Vs. State of Tamil Nadu, represented bySecretary to Government, Home, Prohibition and Excise Department, FortSt. George, Chennai-600 009, and another , had held that the merestatement of the Detaining Authority, that there is a real possibility ofthe detenu coming out on bail, especially, when no bail application hadbeen filed on behalf of the detenu, shall not be sufficient to show thatthe satisfaction recorded by the Detaining Authority is based on cogentmaterials. 15.5) In Soosai @ Balu Vs. The Secretary to Government [2011(1) MWN(Cr.) 413 (DB)], it had been held as follows:“4…….. In the second and Third Adverse cases and also in theGround case, the detenu has not moved for any bail. Apart from this,the Second Adverse case is one for murder. But the Authority hasmechanically stated in the order that there is a real possibility ofthe detenu coming out on bail. The said observation is without anybasis or material much less cogent material, which the law wouldrequire.” https://hcservices.ecourts.gov.in/hcservices/

615.6) In Gowri Vs. The Secretary to Govt. of Tamil Nadu, Home,Prohibition and Excise Department (2011(2) CTC 145), this Court had heldthat the subjective satisfaction recorded by the Detaining Authority waswithout sufficient or cogent materials, relying on the decision of theFull Bench of this Court, in Kalaiselvi,G. Vs. The State of Tamil Nadu(2007(5) CTC 657), wherein, it had been held as follows:“24.From the reading of the aforesaid decisions, it is clear thatthe conclusion of the Detaining Authority that there is imminent anpossibility of the detenu being released on bail must be based oncogent materials and not on the mere ipse dixit of the DetainingAuthority. As has been observed by the Supreme Court, the question asto whether there is possibility of being released on bail depends uponseveral factors, such as nature of offence, the stage of theinvestigation, the availability of statutory bail as envisaged undersection 167(2), Proviso oof Cr.P.C. Even though it is not possibiltnor desirable to enumerate the circumstances in which bail is likelyto be granted, one can venture to say that it is very rare for a Courtof law to grant bail during pendency of the investigation when thereis allegation of commission of serious offence, such as punishableunder Section 302 or Section 395, I.P.C. On the other hand, it is alsosafe to conclude that in offences relating to prohibition laws orwhite collar offences, the Courts usually grant bail notwithstandingthe fact that in offences relating to prohibition laws or white collaroffences, the Courts usually grant bail notwithstanding the fact thatinvestigation may be still going on. Similarly, when a charge-sheet isnot filed within the statutory period contemplated, notwithstandingthe seriousness of the allegation, on the expiry of the period, theaccused got a right to be released on bail.25. In the present case, the conclusion of the Detaining Authority,as already been extracted. We have searched for the materials onrecord in support of such conclusion and we find none. There was noimminent possibility of the detenu obtaining statutory bail as hardly60 days had elapsed from the date of the arrest and the investigatingagency had more than a month for completion of the investigation. Thealleged offence under Section 302, IPC cannot be characterised as anoffence of routine nature which would prompt any Court to grant baileven before completion of investigation. Top of it, the BailApplication had in fact been rejected by the Sessions Judge and noother Bail Application was pending. In such a factual situation, inour considered opinion, the decision of the Supreme Court inT.V.Saravanan v. State, (2006(2) SCC 664, is squarely applicable andit can be said that the conclusion of the Detaining Authority is mereipse dixit and there is hardly any material in support of suchconclusion. On this score also, the detention order is liable to bequashed.”15.7) In M.Rajesh Vs. The Government of Tamil Nadu [2011(1) MWN(Cr.) 279 (DB)], it had been held that, when no bail application ispending, the decision of the Detaining Authority that there was a realpossibility of the detenu coming out on bail would show the non-application of mind on the part of the Detaining Authority, in passingthe detention order. https://hcservices.ecourts.gov.in/hcservices/

716. In such circumstances, this Court is constrained to hold thatthe impugned detention order, dated 15.8.2011, passed by the DetainingAuthority, is devoid of merits and therefore, it is liable to be setaside. Hence, it is set aside. Accordingly, the Habeas Corpus Petitionstands allowed. The detenu is directed to be set at liberty, forthwith,unless his detention is required in connection with any other case orcause. Sd/-Assistant Registrar (Records)/True Copy/Sub Assistant Registrar(CS)To1.The Secretary to Government Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.2.The District Collector and District Magistrate Dindigul, Dindigul District.3.The Superintendent of Prison, Madurai Central Prison, Madurai.4. The Joint Secretary to Government Public ( Law & Order), Fort Saint George, Chennai5. The Additional Public Prosecutor, Madurai Bench of Madras High Court, MaduraigbGH : 04.01.2012 : 7p/6c ORDER MADE INHabeas Corpus Petition (MD).No.805 of 201108.12.2011