IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:- 24.08.2010
CORAM:
THE HON'BLE MR.JUSTICE M. CHOCKALINGAM
AND
THE HON'BLE MR.JUSTICE M. SATHYANARAYANAN
H.C.P. No.645 of 2010
Shanthi ... Petitioner
Vs.
1.The State of Tamil Nadu, rep. by
the Secretary to Government,
Home, Prohibition and
Excise Department.,
Fort St. George,
Chennai 600 009.
2. The District Collector and
District Magistrate,
Karur District, Karur. ... Respondents
Petition under Article 226 of the Constitution of India, seeking to issue a writ of Habeas Corpus, to call for the records relating to the detention order passed by the second respondent pertaining to the order made in Cr.M.P. No.02/2010 dated 4.3.2010 in detaining the detenu under 2(f) of the Tamil Nadu Act 14 of 1982 as a Goonda and quash the same and direct the respondents to produce the detenu Murugesan, S/o. Gopal, male, aged 30 years, who is detained at Central Prison, Tiruchirapalli before this Court and set him at liberty.
For Petitioner : Mr. O.S. Thilak Pasumbadiyar
For Respondents : Mr. V.R. Balasubramanian,
Additional Public Prosecutor
O R D E R
(Order of the Court was made by M. CHOCKALINGAM,J)
This petition is brought forth by the wife of the detenu challenging the order of the second respondent in Cr.M.P. No.02/2010 dated 4.3.2010, whereby the detenu Murugesan was ordered to be detained as a Goonda under the provisions of the Act 14 of 1982.
2. The Court heard the learned counsel appearing for the petitioner and looked into the materials available on record, in particular, the order under challenge.
3. It is not in controversy that pursuant to the recommendation made by the Sponsoring Authority that the detenu is involved in five adverse cases viz. (i) Karur:Velayuthampalayam police station Crime No.302 of 2007 for the offence under Section 379 of the Indian Penal Code; (ii) Karur:Aravakurichi police station Crime No.469 of 2007 for the offence under Section 379 of the Indian Penal Code; (iii)Karur; Aravakurichi police station Crime No.470 of 2007 for the offence under Section 379 of the Indian Penal Code (iv) Karur:Karur Town police station Crime No.2144 of 2007 for the offence under Section 379 of the Indian Penal Code (v) Karur:Aravakurichi police station Crime No.129 of 2010 for the offence under Section 294(b) of the Indian Penal Code and one ground case in Crime No.69 of 2010 registered by Chinnatharapuram police station for the offence under Section 392 of the Indian Penal Code for the incident that had taken place on 12.2.2010 and the detenu was arrested on the same day, the Detaining Authority, on scrutiny of materials placed by the Sponsoring Authority and after arriving at the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order, passed the detention order, which is the subject matter of challenge before this Court.
4. Advancing arguments on behalf of the petitioner, learned counsel raised two points to set aside the detention order. Firstly, a bail application was actually filed in Cr.M.P. No.732 of 2010 and the same was dismissed on 22.2.2010. Subsequently, no bail application was filed. When the detention order was passed on 4.3.2010, no bail application was filed or pending before any criminal Court. While the matter stood thus, the Detaining Authority has observed in the detention order that there was a real possibility of the detenu coming out on bail, which is without any basis or material much less cogent material what the law would require.
5. The second point raised by the learned counsel for the petitioner is that page No.113 of the booklet speaks about the arrest memo, wherein it is stated that as if there was a communication that immediately after the arrest, the same was communicated to the wife of the detenu through cell phone No.9500604806 and through telegraphic message. But the telegraphic message was neither placed before the Detaining Authority nor supplied to the detenu. On these grounds, the detention order has got to be set aside.
6. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
7. As could be seen from the available materials, the Detaining Authority has made the order of detention terming the detenu as a Goonda, on the strength of the materials placed before him pertaining to five adverse cases and one ground case as referred to above, and has recorded his subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order. It is an admitted position that the detenu has actually filed a bail application in Cr.M.P. No.732 of 2010 and the same was dismissed on 22.2.2010. Subsequently, no bail application was filed. The date of which the detention order was passed on 4.3.2010, no bail application was filed or pending before any criminal Court. While the matter stood thus, the Detaining Authority has observed in the detention order which reads as follows:-
” I am aware that Thiru. Murugesan is in remand in Chinnadharapuram P.S. Cr.No.69/2010 and has moved bail application before the Judicial Magistrate No.II, Karur in Cr.M.P. No.732/10 and the same was dismissed on 22.02.2010. I am also aware that there is a real possibility of his coming out on bail by filing another bail application for the above case before the same Court or High Court, since in similar cases, bails are granted by the concerned Court or Higher Courts after lapse of time. If he comes out on bail, he may indulge in such activities again as well which will be prejudicial to the maintenance of public order. Further the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of public order. On the materials placed before me, I am satisfied that Thiru Murugesan, son of Gopal is a “Goonda” and there is compelling necessity to detain him in order to prevent him from involving in acts which are prejudicial to the maintenance of public order under the provisions of 2(f) of the Tamil Nadu Act 14 of 1982.”
8. From the above, it would be quite clear that when the detention order was passed by the Detaining Authority, no bail application was pending, but the Authority has observed that there was a real possibility of the detenu coming out on bail. It is only an expression of the impression in the mind of the Authority and only an inference and that too without any basis or materials much less cogent materials as the law would require.
9. Apart from this, page No.113 of the booklet speaks about the arrest memo, wherein it is stated that immediately after the arrest, the same was communicated to the wife of the detenu through cell phone No.9500604806 and through telegraphic message. But the telegraphic message was neither placed before the Detaining Authority nor supplied to the detenu. In this regard, the Detaining authority should have called for explanation from the Sponsoring Authority, but not done so, which would vitiate the detention order. On these two grounds, the order of detention has got to be set aside.
10. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in Cr.M.P. No.02/2010 dated 4.3.2010. The detenu Murugesan who is now confined at Central Prison, Tiruchirappalli is directed to be set at liberty forthwith unless his custody/detention is required in connection with any other case.
(M.C.J.) (M.S.N.J.)
24.08.2010
Index :- Yes.
Internet:- Yes.
ssa.
To
1.The Secretary to Government,
Home, Prohibition and
Excise Department.,
Fort St. George,
Chennai 600 009.
2. The District Collector and
District Magistrate,
Karur District, Karur.
M. CHOCKALINGAM, J. &
M. SATHYANARAYANAN, J.
ssa.
H.C.P. No.645 of 2010
24.08.2010