P MALA Vs. STATE AND OTHERS

JUDGEMENT

(1.) Challenge is made to the order of detention passed by the second respondent vide Proceedings in C.O.C.No.60 of 2015 dated 16.09.2015, whereby the detenu/husband of the petitioner, by name, Balan @ Panbalan @ Thiruvengadam, aged 55, son of Ramasamy Mudaliyar, was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "Drug Offender".

(2.) Though many grounds have been raised in the petition, Mr.S.Swamidoss Manokaran, the learned counsel appearing for the petitioner, confines his argument only in respect of non-application of mind on the part of the detaining authority in passing the order of detention.

(3.) According to the learned counsel appearing for the petitioner, the detenu has been in remand in the ground case in Cr.No.232/2015 registered by the Thalainayar Police Station and the bail application filed by him in the said case before the District Munsif - cum - Judicial Magistrate, Vedaraniyam in Cr.M.P.No.4304 of 2015 was dismissed and further bail petition filed before the Sessions Judge, Naapattinam in Cr.M.P.No.2278 of 2015 was pending as on the date of the passing of the detention order. But, the Detaining Authority has arrived at the subjective satisfaction that there is real possibility of the detenu coming out on bail in the said case by filing bail application before the higher Court. Further more, the Detaining Authority has not considered any material like a similar case bail order to come to the conclusion that there is a real possibility of coming out on bail. The learned counsel would add that admittedly, in this case, the bail application filed by the detenu was pending and he is in remand in the said case. When a bail application is pending, there is no presumption that he would come out on bail. No cogent materials are available before the Detaining Authority to conclude / to apprehend that the detenu is likely to get bail in the ground case and there is imminent possibility of the detenu coming out on bail in the said case. The apprehension entertained in the mind of the detaining authority that there is a real possibility of detenu coming out on bail as the bail application in the ground case is pending is not justifiable for the reason that he has pre-judged the matter. Concedingly he could not foresee the nature of the order that would be passed by the Court. By the reason of pendency of the application, one could not easily come to the conclusion that the Court would certainly grant bail to the accused. Hence, it is stated that the Detaining Authority has passed the impugned detention order in total non-application of mind and the subjective satisfaction arrived at by the Detaining Authority that is likelihood of the detenu coming out on bail in the said cases is a mere ipse dixit without any cogent materials. In support of his contention, he relies on the judgments of the Hon'ble Apex Court reported in -