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2010 Supreme(Mad) 3776
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM & THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN
S. Kalaivani
Versus
The State rep. By: Secretary to the Government & Another
H.C.P.No.695 of 2010
Decided On : 30-08-2010
For the Petitioner:M. Palanivel, Advocate.
For the Respondents: Babu Muthu Meeran, Additional Public Prosecutor.
The detaining authority must form an opinion on the possibility of the detenu obtaining bail based on cogent materials, and not on mere ipse dixit.
Headnote:
Detention - Public Order - 14/82 - Indian Explosive Substances Act, 1908, Section 3 & 4, IPC Section 147, 148, 120(b), 302, 341, 294(b), 394, 307 - The court set aside the detention order as the authority failed to form an opinion on the possibility of the detenu obtaining bail, indicating non-application of mind.
Fact of the Case:
The petitioner challenges the detention order of her husband under Act 14/82 branding him as a Goonda, based on his involvement in multiple adverse cases and a ground case.
Finding of the Court:
The court found that the detaining authority failed to form an opinion on the possibility of the detenu obtaining bail, indicating non-application of mind, and thus set aside the detention order.
Issues: The main issue was the non-application of mind by the detaining authority in forming an opinion on the possibility of the detenu obtaining bail.
Ratio Decidendi: The detaining authority must base its conclusion on the possibility of the detenu obtaining bail on cogent materials, and not on mere ipse dixit, as observed in the Full Bench decision of the court.
Final Decision: The habeas corpus petition is allowed, setting aside the detention order and directing the detenu to be set at liberty forthwith unless his custody is required in connection with any other case.
(M.CHOCKALINGAM, J.)
1. The petitioner is the wife of the detenu D.Thaveethu @ Thennavan. She challenges an order of the second respondent made in BDFGISSV No.17/2010 dated 4.4.2010, whereby her husband was ordered to be detained under Act 14/82 branding him as a Goonda.
2. The Court heard the learned Counsel for the petitioner and also the learned Additional Public Prosecutor for the State. The Court also looked into the materials available including the grounds of detention.
3. Pursuant to the recommendations made by the sponsoring authority that the detenu is involved in three adverse cases namely (1) Mamallapuram PS Cr.No.192/2009 under Sections 147, 148, 120(b), 302 IPC r/w 3 & 4 of Indian Explosive Substances Act; (2) Chunambedu PS Cr.No.59/2010 under Sections 147, 148, 341 and 302 IPC and (3) Chunambedu PS Cr.No.60/2010 under Sections 147, 148, 294(b), 394, 307 IPC r/w 3 of Indian Explosive Substances Act and also in one ground case registered by Chunambedu PS Cr.No.154/2010 under Sections 147, 148, 294(b), 341, 394, 307 IPC r/w 4 of Indian Explosive Substances Act, 1908 for an occurrence that took place on 17.2.2010, and he was arrested on 1.3.2010 and remanded to judicial custody, the detaining authority after scrutiny of the materials placed, formed an opinion that the detenu should be detained under Act 14/82 and hence passed the order which is under challenge.
4. The learned Counsel while assailing the order under challenge, put forth only one ground. According to him, the authority before stating that the detenu would indulge in such activities in future, has not even formed an opinion that he was likely to come out on bail, or there was a real possibility or imminent possibility of his coming out on bail, and this shows the non-application of mind on the part of the authority, and hence, the order has got to be set aside.
5. The Court heard the learned Additional Public Prosecutor on the above contention and paid its anxious consideration on the submissions made.
6. It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the detenu was involved in three adverse cases and one ground case as referred to above, 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 of detention which is the subject matter of challenge before this Court. It is seen from the impugned order that the detaining authority before stating that he would indulge in such activities in future, has not even formed an opinion that he was likely to come out on bail, or there was a real possibility or imminent possibility of his coming out on bail. Even without assessing the same, the authority has stated that there was a compelling necessity to detain him under the provisions of Act 14/82. This, in the considered opinion of the Court, would suffice to set aside the order since it would be indicative of the non-application of mind on the part of the authority. It would be more apt and appropriate to reproduce the relevant paragraphs of the Full Bench decision of this Court reported in 2007(5) CTC 657 (KALAISELVI V. THE STATE OF TAMIL NADU) as follows:
"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 possibility of being released on bail depends upon several factors, such as nature of offence, the stage of the investigation, the availability of statutory bail as envisaged under Section 167(2), Proviso of Cr.P.C. Even though it is not possible not desirable to enumerate the circumstances in which bail is likely to be granted, one can venture to say that it is very rare for a Cour
