K THIRUPATHI Vs. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR

JUDGEMENT

(1.) THESE batch of habeas Corpus Petitions came before this bench by way of Reference by a Division bench of this Court dated 11-8-2005. The order of Reference is as follows : "a) In preventive detention cases, one of the essential requirements as recognised in a series of rulings is that in the event of the detenu being already in custody as a remand prisoner, the detaining authority should record his satisfaction in a proper manner that there was a possibility of the detenu filing a petition for bail and likelihood of coming out on bail. This has been repeat-edly emphasized in several judgments of the supreme Court and the High Courts. But in many of the recent cases, an important issue which had arisen for consideration is as to whether it is necessary that the word "imminent" should be used in the context of the possibility of the detenu coming out on bail. b) Learned Additional Public Prosecutor refers to the judgment of the Supreme Court in Rivadeneyta Ricardo Agustin v. Government of Delhi (1994 SCC (Cri) 354)and contends that it is sufficient that the detaining authority records his satisfaction indicating that the release was likely or that there was a real possibility of his being released. Specific reference is made to the observations in Paragraphs 8 to 10 of the judgment which reads as follows :

(2.) AS the question raised by way of Reference is a limited one, there is no need to traverse the facts of each case here. However, all the detenus in the above cases are detained under Tamil Nadu Prevention of dangerous Activities of Bootleggers, Drug offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers act (Act 14/1982 ). The said detention orders are under challenge on various grounds in the above Habeas Corpus Petitions either by the detenus themselves or by their relatives. It is further seen that among the grounds raised, invariably in all the petitions, a ground has been taken stating that the detaining authority neither possessed with required materials nor considered the relevant fact, namely, "imminent possibility" of coming out on bail when the detenu was in custody by a valid order of remand. As rightly stated in the order of reference, the question relating to "imminent" possibility of coming out on bail has been interpreted and expressed in many decisions of the High Courts and the Supreme Court. Hence, the short question to be considered here is whether the failure to use the word "imminent" in the order of detention would make the order Invalid, and equally whether the detaining authority could be justified in using other convincing expressions.

(3.) WE heard the arguments of Messrs. M. Patturajan, R. Ramasamy, K. Porkodikannan, A. K. Azhagarsami, learned counsel for the petitioner and all the counsel reiterated the dictum laid down in rivadeneyta Ricardo Agustin v. Government of Delhi, reported in 1994 SCC (Cri) 354 and placed their submissions that in the absence of "imminent possibility" of coming out on bail, the detention order cannot stand. Inasmuch as the question raised occurs in almost all the preventive detention orders that are being challenged before the High court and considering the importance of the question, we appointed Mr. B. Sriramulu, learned senior counsel, as Amicus Curie. Mr. Abudukumar Rajarathinam, learned Government Advocate, represented the State.