Vs. State of Tamil Nadu & Anr  Insc 560 (4 September 2006)
Pasayat & C.K. Thakker
out of SLP (Crl.) No. 2083 of 2006) ARIJIT PASAYAT, J.
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.
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 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.
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.
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.
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.
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.
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.
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
Benches and held that the second petition, on the self same grounds and grounds
which could have been urged, was not maintainable.
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
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
with the likelihood of spread of sexual disease on a huge scale was imminent.
Therefore, according to him, the detenu has rightly been detained.
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.
be noted that the conclusions about imminent possibility of release on bail are
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.
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)].
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