T.V. Saravanan
@ S.A.R.Prasana Venkatachaariar Chaturvedi Vs. State Through Secretary and
Another [2006] Insc 80 (16
February 2006)
B.P.
Singh & Altamas Kabir 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 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. . 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 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 :-
-
"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
-
if the authority
passing the order is aware of the fact that he is actually in custody;
-
if he has reason
to believe on the basis of reliable material placed before him
-
that there is a
real possibility of his being released on bail, and
-
that on being so
released he would in all probability indulge in prejudicial activity and
-
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.
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.
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