ABU ALIAS RABU Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE detenu under the National Security Act is the petitioner. By order dated 18. 12. 2004, he had been detained on the ground that if he is at large, the security of the State is likely to be affected. Mr. N. Manokaran, learned counsel appearing for the petitioner submitted the following points in attacking the order of detention. " (i) Only one case against the detenu had been registered for an offence under Section 394 I. P. C.- which occurrence is shown to have taken place on 22. 11. 2004 and that solitary instance by itself cannot be the basis for arriving at the subjective satisfaction that the security of the State, being at peril. (ii) THE disclosures stated to have been made by madheswaran on 25. 11. 2004 are not true. In any event, it is a concocted version and if really those disclosures are true, then on they making out a cognizable offence, the police ought to have registered a crime. In as much as, the police have not registered the crime, the disclosures stated to have been made by Madheswaran on 25. 11. 2004 cannot be the basis for arriving at the subjective satisfaction that if the detenu is at large, the security of the State would be at peril. (iii) THE subjective satisfaction arrived at by the detaining authority that the detenu is likely to come out on bail is not supported by cogent materials and therefore for want of application of mind to the relevant material, the detention order must be set aside. (iv) On and after commencement of Tamil Nadu Act 14 of 1982, there is a statutory bar created under Section 17 of the said Act not to pass any detention order in respect of bootlegger, drug-offender, forest offender, goonda, immoral traffic offender or slum-grabber or video pirates and therefore the statutory bar created under Section 17 of the Tamil Nadu Act 14 of 1982 would come in the way of the State Government passing the order of detention challenged in this case. " We heard Mr. Abudukumar Rajarathinam, learned Government advocate on the Criminal Side on the above points.

(2.) LET us take the last point urged before this court first for consideration. The statutory bar would come into operation only when a person is to be detained as a bootlegger, drug-offender, forest offender, goonda, immoral traffic offender or slum-grabber or video pirates. In this case, the detention is on the basis of the subjective satisfaction arrived at to the effect that if the detenu is at large, he is likely to indulge in activities, which in turn would affect the security of the State. Such a ground namely, security of the State being the basis for detention order is not covered under Section 17 of the Tamil Nadu Act 14 of 1982. Therefore accepting the submission made by Mr. Abudukumar Rajarathinam, learned Government Advocate on the above lines, the last point stands rejected. We will now take up point no. 3 urged before us. The Supreme Court, in the judgment brought to our notice by the learned counsel appearing for the petitioner, in 2001 SCC (Cri) 147 (AMRITLAL v. UNION GOVT.) while deciding as to whether the subjective satisfaction arrived at by the detaining authority is based on material or not, has held as hereunder:- "in Agustin decision this Court also placed strong reliance on an earlier but oft-cited decision of this Court in Binod Singh v. District Magistrate, Dhanbad wherein it was held that if a person is in custody and there is no imminent possibility of his being released therefrom, the power of detention should not ordinarily be exercised. This Court held that there must be cogent materials before the officer passing the detention order that the detenu is likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention. " In other words the subjective satisfaction arrived at by the detaining authority must be based on cogent materials. In the case on hand, the detaining authority had the First Information Report registered in Crime no. 765 of 2004 on the file of Bunglowpudur Police Station for an offence under section 394 I. P. C; the arrest and the recoveries made and the order dated 10. 12. 2004 passed in CMP No. 7537 of 2004 on the file of Judicial Magistrate no. I, Gobichettipalayam, negativing bail. Therefore it cannot be said that there was no material at all, much less cogent material before the detaining authority to arrive at the subjective satisfaction of the possibility of the detenu coming out on bail. On the above noted materials, the detaining authority proceeded to state as hereunder:- "however there is imminent possibility of his filing further bail application or move the higher courts seeking to release him on bail. I am also aware that in similar cases the accused are released on bail by the same court or the Superior Court after a lapse of some time. And if he comes out on bail he will indulge in such further activities in future as well which will be prejudicial to the maintenance of public order and Security of the State". Reading the above materials available in the grounds of detention as a whole, it is clear to our mind that the detaining authority had definitely arrived at the subjective satisfaction of the detenu coming out on bail. There is no prescribed format for expressing the subjective satisfaction of the detaining authority of the possibility of the detenu coming out on bail. The expression would vary from one detaining authority to other detaining authority. Therefore if we read the above extracted material available in the grounds of detention, it is clear to our mind that the detaining authority had arrived at the subjective satisfaction of the likelihood of the detenu coming out on bail on relevant and cogent materials. Therefore we do not find any infirmity in the grounds of detention in this regard.