BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29/06/2010
CORAM
THE HON'BLE MR.JUSTICE M.CHOCKALINGAM
and
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
Habeas Corpus Petition(MD)No.154 of 2010
Josuva Singh, S/o.Jaya Singh ... Petitioner
vs
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai-600 009.
2.The District Collector and
District Magistrate,
Thirunelveli District.
3.The Inspector of Police,
Munneerpallam Police Station,
Thirunelveli District. ... Respondents
PRAYER
Petition filed under Article 226 of the Constitution of India praying
for the issuance of a Writ of Habeas Corpus calling for the records pertaining
to the impugned order made in M.H.S.Confdl.No.08/2010, dated 23.01.2010, passed
by the 2nd respondent, quashing the same and setting the petitioner/detenu
Josuva Singh, son of Jaya Singh, now detained at Central Prison, Palayamkottai,
at liberty.
!For Petitioner ... Mr.B.Chandran
^For Respondents ... Mr.N.Senthurpandian.
Addl.Public Prosecutor.
:ORDER
[Order of the Court was made by M.CHOCKALINGAM,J]
Challenge is made to the order of the 2nd respondent, dated
23.01.2010, whereby the petitioner by name Josuva Singh, was ordered to be
detained under 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, branding him as a
“Goonda’.
2.The affidavit and the materials filed in support of the
petition, in particular the order under challenge, are looked into. The Court
heard the learned counsel for the petitioner.
3.It is not in controversy that pursuant to the
recommendations made by the Sponsoring Authority that the alleged detenu was to
be detained under Tamil Nadu Act 14 of 1982, as he was involved in three adverse
cases, as detailed below,
Sl.No. Police Station Provisions of law
& Crime Number
1. Melapalayam P.S. U/s.381IPC
Crime Number 115/2009
2. Tirunelveli District U/ss.384 and 506(ii)PC
Crime Branch
Crime No.78/2009
3. Tirunelveli Dist. u/ss.420 & 506(ii) IPC
Crime Branch
Cr.No.01/2010
and also in the ground case in Crime No.9/2010, registered under Section 307 IPC
on the file of Munneerpallam Police Station for a crime that had taken place on
05.01.2010, in which he was arrested on the very day and remanded to judicial
custody, on scrutiny of the materials placed before him, the detaining
authority, the 2nd respondent herein, after recording his subjective
satisfaction that the activities of the alleged detenu were prejudicial to the
maintenance of public order, branded him as a “Goonda” and ordered him to be
detained under Tamil Nadu Act, 14 of 1982, which is the subject matter of
challenge before the Court.
4.Advancing arguments on behalf of the petitioner, learned
counsel brought to the notice of the Court that when the order of detention came
to be passed on 23.01.2010, the detenu was remand in the ground case and no bail
application was either filed or pending before any court of criminal law and the
detaining authority has also mentioned about the same but, even then, the
detaining authority has observed that to prevent the detenu from indulging in
such activities which were prejudicial to the maintenance of the public order,
there was compelling necessity to detain him, which, according to the counsel,
was only the mere apprehension in the mind of the detaining authority since no
material was available before him for coming to such a conclusion. Added
further the learned counsel, before recording the above subjective satisfaction,
the detaining authority has not satisfied himself as to the imminent or real
possibility of the detenu coming out on bail which shows non-application of mind
on the part of the detaining authority. Therefore, according to the learned
counsel, it would suffice to set aside the order of detention under challenge.
5.The Court heard the learned Additional Public Prosecutor for
the State on the above contentions put-forward by the counsel for the
petitioner.
6.After looking into the materials available on record and
considering the submissions made on either side, the Court has to necessarily
agree with the learned counsel for the petitioner and the impugned order of
detention has got to be set aside.
7.It is not in controversy that the detenu was ordered to be
detained under Act 14/1982 on the recommendations made by the Sponsoring
Authority that he was involved in three adverse cases and in one ground case
referred to above. It is true that four cases were registered against the
detenu, namely three adverse cases and one ground case. Relevant portion in
paragraph 6 of the grounds of detention reads as follows:
“6.I am aware that Thiru.Josuva Singh is in remand in Munneerpallam Police
Station crime number 09/2010 and he has not moved any bail application so far in
this case. To restrict him from indulging activities in future, which will be
prejudicial to the maintenance of the public order, it is necessary that he has
to be kept in Judicial custody. Further, in 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 the public
order. On the materials placed before me, I am satisfied that Thiru.Josuva
Singh is a “Goonda” and there is a compelling necessity to detain him, in order
to prevent him from indulging in acts which are prejudicial to the maintenance
of public order under the provisions of the Tamilnadu Act 14 of 1982.”
8.From the reading of the above, it would be quite clear that
the detaining authority has not recorded his subjective satisfaction as to the
imminent or real possibility of the detenu coming out on bail. It is an
admitted position that not even a bail application was filed or pending before
any court of criminal law when the order of detention came to be passed. In
such circumstances, the subjective satisfaction recorded by the detaining
authority was without any material, much less cogent material and, therefore,
the order which is impugned in the present petition is liable to be set aside.
9.Accordingly, the habeas corpus petition is allowed and the
impugned order of detention in No.M.H.S.Confdl.No.08/2010, dated 23.01.2010,
passed by the 2nd respondent is quashed. The petitioner/detenu Josuva singh,
son of Jeyasingh, is directed to be set at liberty forthwith, unless his
presence, in accordance with law, is required in connection with any other case.
gb
To
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai-600 009.
2.The District Collector and
District Magistrate,
Thirunelveli District.
3.The Inspector of Police,
Munneerpallam Police Station,
Thirunelveli District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.