P. K. Misra, J. - (1.) THE detenu has filed the present Habeas Corpus Petition challenging the order of detention dated 28. 1. 2004, passed by the Commissioner of Police, Greater Chennai, under Section 3 (1) of the Tamil Nadu Prevention of dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982), on the footing that the present petitioner is a Goonda within the meaning of Section 2 (f) of the said Act, as it is necessary to prevent such person from acting in any manner prejudicial to the maintenance of public order.
(2.) THE aforesaid order is based on the incident dated 8. 1. 2004, relating to which R6 Kumaran Nagar Police Station Crime No. 17/2004, under Sections 341,336,427,307,385 and 506 (2) IPC, has been registered. THE petitioner was arrested on the very same day, namely, 8. 1. 2004 and was produced before XXIII Metropolitan Magistrate, Saidapet and remanded till 22. 1. 2004 and the said remand was further extended till 5. 2. 2004. In the grounds of detention, reliance has been placed on five adverse cases, namely, R5 choolaimedu P. S Cr. No. 799/2002, under Sections 147, 148, 341 & 302 IPC. , J1 saidapet P. S Cr. No. 1164/2003, under Sections 341,324 & 506 (2) IPC. , J1 saidapet P. S Cr. No. 1234/2003, under Sections 341 & 307 IPC. , J1 Saidapet p. S Cr. No. 1253/2003, under Sections 341,332,336,427,353,307 & 506 (2) IPC and R6 Kumaran Nagar P. S Cr. No. 1203/2003 under Sections 341,323 IPC & 4 (1) (j)TNP Act. The detaining authority in paragraph 4 of the grounds of detention has indicated as follows :- I am aware that Thiru Magi @ Mahendran @ Ravi is in remand and there is imminent possibility that he may come out on bail for the offences under Sections 341,336,307,385,427 and 506 (2) IPC by filing bail application in the Court. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of public order. 4. It is not disputed that as per the materials available at Page Nos. 35, 81 and 123 of the booklet supplied to the petitioner, the very same petitioner was also remanded in connection with 2nd, 3rd and 4th adverse cases by IX Metropolitan Magistrate, Saidapet. In the above background of the basic facts, learned counsel for the petitioner has contended that the detaining authority has not at all considered the fact that the petitioner was in custody and since no bail application had been filed, there was no imminent possibility of the petitioner coming out on bail. In the alternative, it is submitted by him that even assuming that there was possibility of filing bail application in future and being released on bail, the detaining authority has not at all applied his mind to the fact that there were separate remand orders in respect of other crimes, and therefore, there was no imminent possibility of the petitioner being released on bail. In support of his contention that since no bail application had been filed there is no imminent possibility of the petitioner coming out on bail, learned counsel for the petitioner has placed reliance upon the decision of this Court reported in 2004 M. L. J. (Crl.)767 (C. PADMAVATHY v. STATE OF TAMIL NADU, REP. BY SECRETARY, PROHIBITION AND EXCISE DEPARTMENT, chennai AND ANOTHER ). In the aforesaid decision it was not laid down that in all cases where bail application has not been filed, the detaining authority is powerless and no order of preventive detention can be passed. What has been emphasised in the said case is that mere statement of the detaining authority may not be enough. We do not think that it has been laid down as an inexorable principle of law that in cases where the proposed detenu is in custody in connection with some criminal cases, the detaining authority cannot pass an order of preventive detention unless and until a bail application is filed by the proposed detenu.
(3.) DISCUSSION in subsequent paragraphs regarding various decisions of the Supreme Court does not indicate that filing of bail application is a condition precedent for the detaining authority to come to a conclusion that there is compelling reason to pass an order of preventive detention in respect of a person in custody. What is required is that the detaining authority is reasonably satisfied on cogent material that there is likelihood of release of such a person in custody. The submission made on behalf of the petitioner to the effect that in the absence of any bail application having been filed there was no imminent possibility of the petitioner coming out on bail, cannot be accepted as such. However, the alternative submission requires serious consideration. In support of his alternative submission, contention, the learned counsel has placed reliance of the decisions reported in AIR 1990 sc 1196 (DHARMENDRA SUGANCHAND CHELAWAT AND ANOTHER v. UNION OF InDIA AND OTHERS and 1992 (1) Crimes 1160 (KANNAN alias KANNAPPAN v. STATE OF TAMILNADU & another ). In AIR 1989 SC 2027 (N. MEERA RANI v. GOVT. OF TAMIL NADU), while considering the validity of the detention in respect of a person already in custody, it was observed: 22. . . . We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities the detention order can be validly made even in anticipation to operate on his release. This appears to us to be the correct legal position. ;