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2010 Supreme(Mad) 4626
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM & THE HONOURABLE MR. JUSTICE C.S. KARNAN
Mahalakshmi
Versus
The Secretary to the Government of Tamil Nadu & Others
H.C.P. No. 1100 of 2010
Decided On : 26-10-2010
For the Petitioner:N. Duraisamy for T.P. Senthil Kumar, Advocates.
For the Respondents: Babu Muthu Meeran, Additional Public Prosecutor.
The Detaining Authority must base its conclusion on cogent materials and indicate the possibility of the detenu coming out on bail.
Headnote:
Bootlegger - Challenge to Detention Order - Tamil Nadu Prohibition Act, 1937, Section 4(1)(aaa), 4(1-A), 4(1)(i) - The court discussed the subjective satisfaction of the Detaining Authority and the necessity of indicating the possibility of the detenu coming out on bail. It referenced the case of Kalaiselvi, G. v. The State of Tamil Nadu, 2007 (5) CTC 657, and emphasized the need for the Authority to base its conclusion on cogent materials.
Fact of the Case:
The detenu was detained under Act 14 of 1982 as a 'Bootlegger' based on involvement in adverse cases under the Tamil Nadu Prohibition Act, 1937.
Finding of the Court:
The court found that the subjective satisfaction recorded by the Detaining Authority lacked sufficient or cogent material, and there was no indication of the Authority arriving at the subjective satisfaction before passing the detention order.
Issues: The main issue raised was the lack of indication of the possibility of the detenu coming out on bail in the detention order.
Ratio Decidendi: The court emphasized the need for the Detaining Authority to base its conclusion on cogent materials and indicate the possibility of the detenu coming out on bail.
Final Decision: The Habeas Corpus Petition was allowed, setting aside the detention order and directing the detenu to be set at liberty forthwith unless his presence is required in connection with any other case.
1. Challenge is made to an order of the Second Respondent dated 28.5.2010 in detention order C.O.C. No. 8 of 2010, whereby, the order of detention came to be passed against the Petitioner’s brother-in-law, viz., detenu Chokkai @ Shanmugam, s/o Kaliyappan, aged 31 years, detaining him under Act 14 of 1982 terming him as a “Bootlegger”.
2. The Court heard the learned Counsel for the Petitioner and looked into the materials available on record, in particular, the order under challenge.
3. It is not in controversy that pursuant to the recommendation made that the detenu involved in three adverse cases, namely, (1) Kariyappattinam P.S.Cr. No.55/2009 under Section 4(1)(aaa) read with 4(1-A) and Section 4(1)(aaa), Tamil Nadu Prohibition Act, 1937; (2) Kariyapattinam P.S.Cr. No.143/2009 under Section 4(1)(aaa) read with 4(1-A) and Section 4(1)(aaa), Tamil Nadu Prohibition Act, 1937; (3) Kariyapattinam P.S.Cr. No.256/2009 under Section 4(1)(aaa) read with 4(1-A) and Section 4(1)(aaa), Tamil Nadu Prohibition Act, 1937 and also a ground case registered by Kariyapattinam P.S.Cr. No. 106/2010 under Sections 4(1)(i), 4(1)(aaa) read with 4(1-A), Tamil Nadu Prohibition Act, 1937, for an occurrence that took place on 11.5.2010, he was arrested and remanded to judicial custody on the very same day, and on scrutiny of the materials available, the Detaining Authority after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order has made the order under challenge after terming him as “Bootlegger” as defined under the provisions of the enactment.
4. Advancing arguments on behalf of the Petitioner, the learned Counsel raised one ground, which according to him is suffice to set aside the order of detention. According to learned Counsel, in the detention order, the Authority has recorded the subjective satisfaction that the detenu would indulge in such activities in future, which are prejudicial to the maintenance of public order and public health, but, no where the Authority has stated that there is a real possibility or imminent possibility or likelihood of he detenu coming out on bail and this would vitiate the order of detention and it has got to be set aside.
5. The Court heard the learned Counsel for the State on the above contents.
6. As could be seen above, the order of detention came to be passed on 28.5.2010 terming the detenu as a “Bootlegger”. The Detaining Authority has also recorded the subjective satisfaction. Before sustaining the order, the Court has to necessarily look into whether subjective satisfaction so recorded by the Detaining Authority was based on necessary materials as required. It could be seen from the detention order, the Authority has recorded the subjective satisfaction that the detenu would indulge in such activities in future, which are prejudicial to the maintenance of public order and public health, but, no where the Authority has stated that there is a real possibility or imminent possibility or likelihood of the detenu coming out on bail. In a given case like this, the Authority must form an opinion before recording subjective satisfaction and that too, on the basis of the materials available and it becomes necessary for him to indicate, whether there is a real possibility or imminent possibility or likelihood of the detenu coming out on bail, but the Authority has not stated any terms to indicate the same. There was an occasion for the Full Bench of this Court to consider the same in Kalaiselvi, G. v. The State of Tamil Nadu, 2007 (5) CTC 657, wherein, it has been held as under:
24. From the reading of the aforesaid decisions, it is clear that the conclusion of the Detaining Authority that there is imminent possibility of the detenu being released on bail must be based on cogent materials and not on the mere ipse dixit of the Detaining Authority. As has been observed by the Supreme Court, the question as to whether there is possibil
