IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16-11-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN H.C.P.No.1229 of 2010 Arunagiri .. Petitioner vs 1.The State of Tamilnadu Rep. By its Secretary to Government Home, Prohibition and Excise Department Fort St. George, Chennai 9. 2.The Commissioner of Police Chennai Police Egmore, Chennai 8. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus calling for the entire records leading to the detention of the petitioner Arunagiri, S/o. Subramani, under Act 14/82 as a Goonda vide detention order dated 27.5.2010 on the file of the second respondent herein, made in Memo No.309/BDFGISSV/ 2010 and quash the same and consequently direct the respondents herein to produce the body and person of the said detenu before this Court and thereafter set him at liberty from the Central Prison, Puzhal, Chennai For Petitioner : Mr.M.Rajavelu For Respondents : Mr.Babu Muthu Meeran Additional Public Prosecutor ORDER
(Order of the Court was made by M.CHOCKALINGAM, J.)
This petition challenges an order of the second respondent dated 27.5.2010, whereby the petitioner himself was ordered to be detained under Act 14/82 branding him as a Goonda.
2.All the materials available and in particular, the order under challenge, are perused. The Court heard the learned Counsel for the petitioner.
3.It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the said detenu was involved in three adverse cases namely (1) E1 Mylapore PS Cr.No.579/2006 under Sections 147, 148, 324, 427, 307 and 506(ii) IPC; (2) E1 Mylapore PS Cr.No.475/2010 under Sections 341, 324, 307 and 506(2) IPC and (3) E1 Mylapore PS Cr.No.702/2010 under Sections 147, 341 and 325 IPC, and also in a ground case registered by E1 Mylapore PS in Crime No.719/2010 under Sections 341, 384, 307, 427, 336 and 506(ii) IPC for an occurrence that had taken place on 18.5.2010, and he was arrested on 19.5.2010, and on scrutiny of the entire materials, the detaining authority namely the second respondent herein, has made the order under challenge after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order.
4.The learned Counsel for the petitioner raised the following grounds:
(i) The detenu was arrested only in the ground case in Crime No.719/2010 on 19.5.2010. He was neither arrested nor shown arrested in any one of the adverse cases. He has also not moved for bail before any Court of criminal law. But the authority has stated in paragraph 4 of the grounds of detention that there was a real possibility of his coming out on bail, and this is without any basis or material, much less cogent material.
(ii) There was a pre-detention representation made on 20.5.2010, and that was not at all considered by the authority, though it was received on 24.5.2010. The learned Counsel placed a copy of the representation along with the proof for service on the authority.
5.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
6.As could be seen above, the detaining authority after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order, has made the order under challenge. As regards the first ground, it is an admitted position that the detenu was arrested only in the ground case registered in Crime No.719/2010. According to the learned Counsel for the petitioner, he was neither arrested nor shown arrested in respect of any one of the adverse cases. As rightly pointed out by the learned Counsel for the petitioner, he has not moved any bail application before any Court of criminal law. Paragraph 4 of the grounds of detention reads as follows:
“I am aware that Thiru. Arunagiri is in remand in E-1 Mylapore Police Station Crime No.719/2010 and he has not moved any bail application for the above case so far. The sponsoring authority has stated that the relatives of Thiru. Arunagiri are taking action to take him on bail in the above case by filing bail application before the Court and since in a case registered under Sections 341 and 307 IPC at E-2 Royapettah Police Station Cr.No.382/2009, bail was granted in Crl. M.P. No.5266/2009 by the Court of Principal Sessions, Chennai. Hence, there is a real possibility of his coming out on bail by filing bail application in the above case before the appropriate Court….”
7.From the above, it would be quite clear that even after recording that he has not moved any bail application, the authority has stated that there was a real possibility of his coming out on bail. This observation made by the detaining authority, is without any basis or foundation or material, much less cogent material which the law would require. In such circumstances, the order of detention has become defective.
8.As regards the second ground urged, there was a pre-detention representation dated 20.5.2010. It was received by the authority on 24.5.2010, as per the proof therefor produced by the learned Counsel for the petitioner. But this representation was not at all considered. Hence, both the above grounds, in the considered opinion of the Court, would suffice to set aside the order.
9.Accordingly, this habeas corpus petition is allowed setting aside the order of detention passed by the second respondent. The detenu is directed to be set at liberty forthwith unless his custody is required in connection with any other case.
(M.C.,J.) (C.S.K.,J.)
16-11-2010
Index: yes
Internet: yes
nsv
To:
1.The Secretary to Government
Home, Prohibition and Excise
Department
Fort St. George, Chennai 9.
2.The Commissioner of Police
Chennai Police
Egmore, Chennai 8.
3.The Public Prosecutor
High Court, Madras.
M.CHOCKALINGAM, J.
AND
C.S.KARNAN, J.
nsv
HCP No.1229 of 2010
Dt: 16-11-2010