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CASE NO.: Appeal (crl.)  1176 of 2005

PETITIONER: T.V. Saravanan @ S.A.R.Prasana Venkatachaariar Chaturvedi

RESPONDENT: State through Secretary and another

DATE OF JUDGMENT: 16/02/2006

BENCH: B.P. SINGH & ALTAMAS KABIR

JUDGMENT: J U D G M E N T  

B.P. SINGH, J.  

       This appeal by special leave is directed against the judgment and  order of the High Court of Judicature at Madras, Chennai in H.C.P. No.  34 of 2005 whereby the High Court dismissed the habeas corpus petition  filed by the appellant and upheld his detention under the Tamil Nadu  Prevention of Dangerous Activities of Bootleggers, Drug Offenders,  Forest Offenders, Goondas Immoral Traffic Offenders and Slum Grabbers  and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) (hereinafter  referred to as ’the Act’).  The detaining authority finding the appellant to  be a ’goonda’ under the provisions of the Act and there being a  compelling necessity to detain him in order to prevent him for indulging  in such further activities in future which were prejudicial to the  maintenance of public order passed the impugned order of detention on  15th December, 2004.    

       The appeal came up for hearing before us on December 13, 2005.   Since the order of detention was coming to an end on December 14, 2005  we heard the counsel for the parties and while allowing the appeal set  aside the order of detention and directed the release of the appellant.  We  hereby give the reasons for our order made on December 13, 2005.

       The appellant was detained by an order passed in exercise of  powers conferred by sub-section (1) of Section 3 of the Act on the ground  that he was a ’goonda’ within the meaning of the Act and that there was a  compelling necessity to detain him in order to prevent him from indulging  in such further activities in future which were prejudicial to the  maintenance of the public order.  The grounds of detention disclose that  there were as many as 7 cases registered against the appellant.  The  complaints in those cases disclosed that the appellant claiming to be a  spiritual mentor attracted large number of followers including females.  In  one case he had exploited the wife and the elder daughter of the  complainant sexually and had also abducted his wife and daughter.  In  another case it was alleged that he cheated the wife of the complainant of  jewellery worth Rs. 6,00,000/- promising to cure her of cancer, and it was  later discovered that she was not suffering from any such ailment.   Similarly on various false assurances given to other complainants he had  deprived them of substantial sums of money taking advantage of the faith  reposed in him by them as a spiritual person.   

       Before the High Court it was submitted on behalf of the appellant  that the instances given in the detention order, at best, created a problem  of law and order and did not in any manner adversely affect public order.   The allegations were to the effect that taking advantage of the faith  reposed in him, he cheated many of his followers of substantial amounts

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making false promises and giving false assurances.  In one case there was  also an allegation of sexually exploiting the wife and daughter of the  complainant.  These instances did not raise question of public order as the  acts complained of were directed against particular individuals which did  not disturb the society to the extent of causing a general disturbance of  public tranquility. The acts did not cause disturbance of the public order at  all.

       The High Court negatived the contention and held that the grounds  of detention disclose that the appellant had indulged in shocking and  illegal activities which would be detrimental to the maintenance of public  order.  The subjective satisfaction of the detaining authority was well  founded.  

       Before us the same submission was advanced as was advanced  before the High Court.  However, Shri K.T.S. Tulsi, learned Senior  Counsel appearing for the appellant, in addition to the aforesaid  submission, advanced a second submission that in the facts and  circumstances of the case, as is evident from the record itself as well as  the order of detention, the appellant was already in custody when the  order of detention was passed.  There was no imminent chance of his  being released on bail and yet the detaining authority, even in the absence  of any material to raise an apprehension that he may be released on bail in  near future and continue with his nefarious activities, passed the  impugned order of detention.  In our view having regard to the material on  record it is not necessary to consider the first ground of challenge, since  the second ground of challenge must succeed.  It may be useful to notice  the relevant part of the detention order which deals with this aspect of the  matter.  It reads as follows :-  

":I am aware  that Thiru Venkata Sravanan @ S.A.R.  Prasanna Venkatachariyar Chaturvedi is in remand in Central  Crime Branch Nos. 582/2004, 592/2004, 594/2004,   598/2004, 601/2004 and 602/2004 and a bail application was  moved before the Principal Sessions Court in Crl. M.P. No.  11163/2004 in Central Crime Branch Crime No. 582/2004  and the same was dismissed on 17.11.2004.  Further a bail  application was moved before the Hon’ble High Court,  Madras in Crl. O.P. No. 37011/2004 in Central Crime  Branch Crime No. 582/2004 and the same was withdrawn on  3.12.2004.  He has not moved any bail subsequently.   However, there is imminent possibility of his coming out on  bail by filing another bail application before the Principal  Sessions Court or Hon’ble High Court since in similar cases  bails are granted by the Principal Session Court after a lapse  of time.  If he comes out on bail, he will indulge in further  activities which will be prejudicial to the maintenance of  public order."

       The question is whether on the basis of such material, an order of  detention was justified, even though the appellant was in custody on the date  of issuance of the order of detention.  The principle in this regard is well  settled.  In Rameshwar Shaw  vs.   District Magistrte, Burdwan and another  : AIR 1964 SC 334 this Court observed :- "12.    As abstract proposition of law, there may not be any  doubt that s. 3(1)(a) does not preclude the authority from  passing an order of detention against a person whilst he is in  detention or in jail; but the relevant facts in connection with  the making of the order may differ and that may make a  difference in the application of the principle that a detention  order can be passed against a person in jail. \005\005. Therefore,  we are satisfied that the question as to whether an order of  detention can be passed against a person who is in detention  or in jail, will always have to be determined in the

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circumstances of each case.

The principle was further elucidated in Binod Singh  vs.  District Magistrate,  Dhanbad, Bihar and others : (1986) 4 SCC 416 in the following words :-

"7      It is well settled in our constitutional framework that  the power of directing preventive detention given to the  appropriate authorities must be exercised in exceptional cases  as contemplated by the various provisions of the different  statutes dealing with preventive detention and should be used  with great deal of circumspection. There must be awareness  of the facts necessitating preventive custody of a person for  social defence. If a man is in custody and there is no  imminent possibility of his being released, the power of  preventive detention should not be exercised. In the instant  case when the actual order of detention was served upon the  detenu, the detenu was in jail. There is no indication that this  factor or the question that the said detenu might be released  or that there was such a possibility of his release, was taken  into consideration by the detaining authority properly and  seriously before the service of the order. A bald statement is  merely an ipse dixit of the officer. If there were cogent  materials for thinking that the detenu might be released then  these should have been made apparent. Eternal vigilance on  the part of the authority charged with both law and order and  public order is the price which the democracy in this country  extracts from the public officials in order to protect the  fundamental freedoms of our citizens."

In Kamarunnissa vs.  Union of India and another : (1991) 1 SCC 128 this  Court observed :- "13.    From the catena of decisions referred to above it seems  clear to us that even in the case of a person in custody a  detention order can validly be passed (1) if the authority  passing the order is aware of the fact that he is actually in  custody; (2) if he has reason to believe on the basis of  reliable material placed before him (a) that there is a real  possibility of his being released on bail, and (b) that on being  so released he would in all probability indulge in prejudicial  activity and (3) if it is felt essential to detain him to prevent  him from so doing. If the authority passes an order after  recording his satisfaction in this behalf, such an order cannot  be struck down on the ground that the proper course for the  authority was to oppose the bail and if bail is granted  notwithstanding such opposition to question it before a  higher Court."  

       Apart from these decisions learned counsel for the appellant also  placed reliance on the decisions reported in -  Rajesh Gulati  vs. Govt. of  NCT of Delhi and another  : (2002) 7 SCC 129  ;  K. Varadharaj  vs.  State  of T.N. and another : (2002) 6 SCC 735 ; Amritlal and others  vs.  Union  Govt. through Secretary, Ministry of Finance and others : (2001) 1 SCC 341  ;  Rivadeneyta Ricardo Agustin  vs.  Government of the NCT of Delhi and  others  : 1994 Supp (1) SCC 597 and  Abdul Sathar Ibrahim Manik  vs.   Union of India and others : (1992) 1 SCC  1.

       It is not necessary for us to notice all the decisions cited before us  because we find that the principle enunciated by this Court in Rameshwar  Shaw  vs.   District Magistrte, Burdwan and another (supra) Binod Singh   vs.  District Magistrate, Dhanbad, Bihar and others (supra) Kamarunnissa  vs.  Union of India and another (supra) have been applied to the facts and  circumstances of the cases cited before us by Shri Tulsi.  The principle is  well settled and all that has to be seen is whether in the facts and  circumstances of this case the tests laid down by this Court are satisfied.

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       The order of detention itself notices the fact that the appellant had  moved an application for grant of bail before the Principal Sessions Court  which was rejected on November 17, 2004.  The  appellant had moved  another bail application before the High Court which was withdrawn on  December 3, 2004.  The detaining authority noticed that the appellant had  not moved any bail application subsequently but it went on to state that there  was imminent possibility of appellant’s coming out on bail by filing another  bail application before the Sessions Court or the High Court since in similar  cases bails are granted by the Sessions Court after a lapse of time.  The order  of detention was passed on December 15, 2004 i.e. merely 12 days after the  dismissal of the bail application by the High Court.  There is nothing on  record to show that the appellant had made any preparation for filing a bail  application, or that another bail application had actually been filed by him  which was likely to come up for hearing in due course.   

A somewhat similar reasoning was adopted by the detaining authority  in Rajesh Gulati  vs. Govt. of NCT of Delhi and another (supra).  This Court  noticing the facts of the case observed :-   "13.  In this case, the detaining authority’s satisfaction  consisted of two parts-one: that the appellant was likely to be  released on bail and two: that after he was so released the  appellant would indulge in smuggling activities. The  detaining authority noted that the appellant was in custody  when the order of detention was passed. But the detaining  authority said that "bail is normally granted in such cases".  When in fact the five applications filed by the appellant for  bail had been rejected by the Courts (indicating that this was  not a ’normal’ case), on what material did the detaining  authority conclude that there was "imminent possibility" that  the appellant would come out on bail? The fact that the  appellant was subsequently released on bail by the High  Court could not have been foretold. As matters in fact stood  when the order of detention was passed, the "normal" rule of  release on bail had not been followed by the courts and it  could not have been relied on by the detaining authority to be  satisfied that the appellant would be released on bail. [See: in  this context Ramesh Yadav v. District Magistrate : (1985) 4  SCC 232].

       We are satisfied that for the same reason the order of detention cannot  be upheld in this case.  The bail applications moved by the appellant had  been rejected by the Courts and there was no material whatsoever to  apprehend that he was likely to move a bail application or that there was  imminent possibility of the prayer for bail being granted.  The "imminent  possibility" of the appellant coming out on bail is merely the ipse dixit of the  detaining authority unsupported by any material whatsoever.  There was no  cogent material before the detaining authority on the basis of which the  detaining authority could be satisfied that the detenue was likely to be  released on bail.  The inference has to be drawn from the available material  on record.  In the absence of such material on record the mere ipse dixit of  the detaining authority is not sufficient to sustain the order of detention.   There was, therefore, no sufficient compliance with the requirements as laid  down by this Court.  These are the reasons for which while allowing the  appeal we directed the release of the appellant by order dated December 13,  2005.