BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08/12/2005 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA AND THE HONURABLE MR.JUSTICE AR.RAMALINGAM Habeas Corpus Petition (MD).No.343 of 2005 In the matter of detention of one Balasubramanian alias Subramanian alias Subbudu alias Subbu, son of Palavesam, under the Tamil Nadu Act 14 of 1982 as a Goonda. Balasubramanian alias Subramanian alias Subbudu alias Subbu ... Petitioner vs. 1.The Commissioner of Police, Madurai City. 2.The State of Tamilnadu, rep.by The Secretary, Prohibition and Excise Department, Fort St.George, Chennai-9. ... Respondents Petition under Article 226 of the Constitution of India, praying for issuance of writ of habeas corpus calling for the records of the first respondent in No.35/BDFGISV/2005, dated 28.06.2005 and quash the same and consequently to set the detenu Balasubramanian alias Subramanian alias Subbudu alias Subbu, son of Palavesam, at liberty. !For Petitioner ... Mr.D.Malaichamy ^For Respondents ... Mr.P.Jothi, Additional Public Prosecutor. :ORDER
(Order of the Court was made by P.K.MISRA,J)
Heard the learned counsel appearing for the parties.
2.The detenu himself has filed this habeas corpus petition
challenging the order of preventive detention under the Tamil Nadu Act 14/1982
on the ground that he is a Goonda.
3.The learned counsel for the petitioner has raised several
contentions. But, it is not necessary for us to deal with all such contentions,
as, in our opinion, the contention relating to non-application of mind by the
detaining authority to the fact that the detenu had been remanded in connection
with two different crimes has vitiated the order of detention.
4.From the grounds of detention, it is apparent that the detenu was
arrested in connection with Crime No.1329/2005 and was remanded on 12.06.2005.
On the basis of statement made by the detenu himself, the investigating
authority came to know that the petitioner was also involved in Crime
No.2270/2004 which is also a case under Section 397 IPC. The detenu was
remanded in connection with the said case on 21.06.2005. In the grounds of
detention, the detaining authority has recorded his satisfaction to the effect
that bail application had been filed in Mathiciyam Police Station Crime
No.1329/2005 and there was an imminent possibility of being released on bail.
However, no satisfaction is recorded anywhere that the petitioner was also
likely to be
released in Crime No.2270/2004, which is also an offence under Section 397 IPC.
5.A specific contention has been raised by the petitioner regarding
such non-application of mind in ground No.(c) to the effect that the detaining
authority has not considered the possibility of the detenu coming out on bail in
the second adverse case, which is also a serious crime registered under Section
397 IPC. In reply to such contention, in the counter affidavit, it is has been
indicated that the detaining authority has recorded that the detenu was likely
to be released in connection with crime No.1329/2005 and there was no non-
application of mind in not considering the possibility of coming out on bail in
other cases.
6.In our opinion, such stand taken in the counter affidavit cannot
be accepted. Even assuming that the detenu would have been released in
connection with crime No.1399/2005, he could not have come out on bail as remand
was also in respect of another case, namely Crime No.2270/2004 and unless bail
order would have been passed in such case, the detenu would have continued to
remain inside the jail. Therefore, non consideration of this aspect has
obviously vitiated the order of detention. The aforesaid conclusion is
supported by a Division Bench decision of this Court to which one of us
(P.K.MISRA,J) was a party [Anjalammal v. The State of Tamil Nadu – (2004)
M.L.J.(Crl.) 829].
7.In such view of the matter, the habeas corpus petition is allowed
and the order of detention in No.35/BDFGISV/2005, dated 28.06.2005, passed by
the first respondent is quashed. The detenu is directed to be released
forthwith unless his presence is required in connection with any other case.
gb.
To:
1.The Commissioner of Police,
Madurai City.
2.The Secretary to Government,
Prohibition and Excise Department,
Fort St.George, Chennai-9.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.