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CASE NO.: Appeal (crl.)  911 of 2006

PETITIONER: A. Geetha

RESPONDENT: State of Tamil Nadu & Anr.

DATE OF JUDGMENT: 04/09/2006

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 2083 of 2006)

ARIJIT PASAYAT, J.

       Leave granted.

       Appellant calls in question legality of the judgment  rendered by a Division Bench of the Madras High Court  dismissing the Habeas Corpus Writ Petition filed by A. Geetha  wife of Anandaraj @ Anand @Anandan,(hereinafter referred to  as the ’Detenu’).  The aforesaid detenu was detained under  Section 3(2) of the Tamil Nadu Prevention of Dangerous  Activities of Bootleggers, Drug Offenders, Forest Offenders,  Goondas, Immoral Traffic Offenders, Slum Grabbers and Video  Pirates Act, 1982 (in short the ’Act’).   The order was passed on  the basis of ground case in Crime No. 175 of 2005 for alleged  commission of offences under Sections 3(1), 4(1), 5(1), 6(1) and  7(1) of the Act and Section 366 of the Indian Penal Code, 1860  (in short the ’IPC’).  The allegation against the detenu was that  on 5.9.2005 at about 17.15 hours the Sub-Inspector of Police  proceeded on rounds to watch whether any prostitution  activity was going on at Vadapalani, Arcot Road, Chennai City.   When he was so proceeding near Avichi School, he noticed  that the detenu was sitting in a red colour Maruti car and  doing prostitution business.  The detaining authority took note  of three other adverse cases wherein the detenu was involved  in prostitution business.  Offences as noted above related to  keeping a  brothel, living on the earnings of prostitution,  procuring, inducing for the sake of prostitution detaining  women in premises where prostitution is carrying on and  doing prostitution in the vicinity of public place and abducting  women for prostitution which were  punishable under the Act  and IPC. The investigation revealed that the detenu used to get  young innocent poor girls, who because of poverty were in  search of employment from State of Andhra Pradesh under the  guise of getting employment and induced and forced them to  indulge in prostitution business and took house a Porur,  Chennai and kept the procured girls there and at times he  took them to different places in Chennai city in cars and  forced them into prostitution and earn huge money with the  help of his associates.  The investigation further disclosed that  the detenu and his associates were doing such prostitution  business at various places and were spoiling lives of young

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persons.  Considering these activities to be prejudicial to  maintenance of public order and being of the view that  recourse to normal criminal law would not have desired effect  in preventing him from indulging in such activities which are  prejudicial to maintenance of public order, the detaining  authority passed the impugned order.  The detenu was  declared as an ’immoral traffic offender’ and was kept in  custody at the Central Prison, Chennai.  The order of  detention was assailed by filing a habeas corpus petition  before the Madras High Court. One of the major plank of the  appellant’s argument was that the representation dated  25.9.2005 received by the detaining authority on 26.9.2005  had not been considered though the Government approved the  order of detention only on 2.10.2005.  It was submitted that  the said representation was neither placed before the Advisory  Board nor the Government and therefore the ultimate order  passed by the detaining authority is liable to be set aside.  The  State with reference to the records  produced contended that  all the six representation submitted by the detenu and/or his  relatives were placed before the Advisory Board as well as the  Government and all of them were duly considered.  It was also  stated that even the pre-detention representation dated  15.9.2005 was duly considered.  The High Court verified the  records and came to the conclusion that all the  representatives were placed before the Advisory Board as well  as before the Government,  were duly considered and rejected.   It was pointed out that no new point was urged in the  representation dated 25.9.2005 copy of which was annexed,  even if it is accepted for the sake of argument that such a  representation was made and it was held that since all the  representations were duly considered, the detenu was in no  way prejudiced.  The High Court further found no substance  in the plea that one of the adverse cases related to an offence  punishable under Section 22 of the Narcotic Drugs and  Psychotropic Substances Act, 1985 (in short the ’NDPS Act’)   and since the same was more grievous offence, the possibility  of coming out of bail was removed.    

       High Court noticed that the punishment under the NDPS  Act depends upon the quantity of the material seized and in  the absence of any details being furnished it cannot be said  that possibility of coming out of bail was remote.

       It was pointed out by learned counsel for the State that  offence punishable under Section 366 IPC is also graver in  nature and liable for imprisonment up to seven years and fine  and therefore the High Court held that the detaining authority  was well within his power in describing the detenu an  ’immoral traffic offender’ and detaining him on grounds stated.   The High Court found substance in the conclusion of the  detaining authority that the detenu was not only spoiling  young innocent boys and girls but his activities were paving  way to sexual diseases in an epidemic proposition which will  effect maintenance of public order and health. Accordingly the  writ petition was dismissed.

       After the first writ petition was dismissed a second  Habeas Corpus Petition was filed where the same order of  detention was challenged.   The only ground urged in support  of the second petition was that the order of rejection was  passed on 2.10.2005 and the same was served on 6.10.2005.   The High Court noticed that this plea was available to be  urged in the first writ petition and it having not been done the  order of detention was not vulnerable.  The High Court  referred to some earlier judgments rendered by two different

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Benches and held that the second petition, on the self same  grounds and grounds which could have been urged, was not  maintainable.   

       In support of the appeal learned counsel for the appellant  submitted that the bail application was rejected on 17.9.2005  and the order of detention was passed on 21.9.2005.  It was  submitted that there was no scope for observing that there  was likelihood of release.  Further, one of the representations  was not dealt with.

In support of the order of detention and the order of the  High Court, learned counsel for the State submitted that it is  fairly well settled that it is the impact of an act and not the  number of acts which determine whether the act can be  relatable to public order or not. In the instant case, the  scenario as described in the grounds of detention clearly  shows that the acts committed by the detenu were of such  intensity that the moral fibre of the community was disturbed.  Prostitution with the likelihood of spread of sexual disease on  a huge scale was imminent. Therefore, according to him, the  detenu has rightly been detained.  

By way of additional affidavit the second respondent i.e.  Commissioner of Police, Chennai has placed on record a letter  dated 4.1.2006, in respect of the representations of the  appellant indicating the details, the representations received  and dealt with.

It may be noted that the conclusions about imminent  possibility of release on bail are under challenge.  

It has to be noted that whether prayer for bail would be  accepted depends on circumstances of each case and no hard  and fast rule can be applied. The only requirement is that the  detaining authority should be aware that the detenu is already  in custody and is likely to be released on bail.  The conclusion  that the detenu may be released on bail cannot be ipse-dixit of  the detaining authority. On the basis of materials before him,  the detaining authority came to the conclusion that there is  likelihood of detenu being released on bail. That is his  subjective satisfaction based on materials. Normally, such  satisfaction is not to be interfered with. On the facts of the  case, the detaining authority has indicated as to why he was of  the opinion that there is likelihood of detenu being released on  bail. It has been clearly stated that in similar cases orders  granting bail are passed by various courts.  Appellant has not  disputed correctness of this statement. Strong reliance was  placed by learned counsel for the appellant on Rajesh Gulati v.  Govt. of NCT of Delhi and Another [2002 (7) SCC 129]. The  factual scenario in that case was entirely different.  In fact, five  bail applications filed had been already rejected. In that  background this Court observed that it was not "normal" case.  The High Court was justified in rejecting the stand of the  appellant.  [See:  Ibrahim Nazeer v. State of Tamil Nadu and  Anr. (JT 2006 (6) SC 228) and Senthamilselvi v. State of T.N.  and Another (2006 (5) SCC 676)].

       Further the second respondent has filed an additional  affidavit indicating that on verification of the registered post  register for central zone, it has been noticed that no  representation either from the detenu or on his behalf was  received through registered post between 25.9.2005 and  30.9.2005. In view of the aforesaid, we find no substance in  this appeal and the same is accordingly dismissed.