M ELUMALAI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The petitioner M. Elumalal has been detained as a Bootlegger under Tamil Nadu Act 14 of 1982 in pursuance of an order of detention dated 30-4-1997 passed by the second respondent the District Collector and Magistrate, Tiruvannamalai Sambuvaryar District, Thiruvannamali with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and public health.

(2.) We do not deem it necessary to narrate the facts in detail which led to the passing of the impugned order of detention, for this Habeas Corpus Petition will have to be allowed on a short ground of non-application of mind on the part of the detaining .authority regarding compelling necessity. In Paragraph 5 of the grounds of detention, this is what the detained authority has stated: - TIJ am aware that Elumalai is now in remand and is lodged in the Sub-jail, Cheyyar. No bail application has been filed on behalf of the accused. I am also aware that in such cases, bail is granted after lapse of some time and there is no imminent possibility of the detenu coming out on bail. From the above observations, it is clear that nowhere the detaining authority has stated that the detenu is likely to file bail application in future and is likely to come out on bail. That being so, there was no compelling necessity for the detaining authority to detain him as a detenu. In this connection, we can derive support from the decision of the Supreme Court reported in Rivadenenyia Ricardo Augstin v. Government of Delhi, wherein the Apex Court has observed that there must be cogent material before the officer passing the detention order for inferring that the detenu was likely to be released on bail. This inference must be drawn from material on record and must not be the ipso dixit of the officer passing the detention order. In the present case, the detaining authority has not at all mentioned that the detenu is likely to file a bail a application and is likely to come out on bail. However, the learned Additional Public Prosecutor submitted that it is the subjective satisfaction of the detaining authority and the Court cannot go into the subjective satisfaction. In this connection, the learned Additional Public Prosecutor placed reliance on the Supreme Court decisions reported in A.I.R. 1994 5. C. 1652 and A.I.R. 1994(4) SCR 2682g. There is no dispute to the proposition of law laid down by the Supreme Court. But, in the present case, the detaining authority has nowhere stated that the detenu is likely to file bail application and he is likely to come out on bail. This shows a clear non-application of mind on the part of the detaining authority.

(3.) Hence, for the reasons stated above, we set aside the impugned order of detention and we direct that the detenu be set at liberty forthwith, unless his detention is otherwise required. This Habeas Corpus Petition is allowed. Petition allowed.