IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:- 22.10.2010
CORAM:
THE HON'BLE MR.JUSTICE M. CHOCKALINGAM
AND
THE HON'BLE MR.JUSTICE C.S. KARNAN
H.C.P. No.1485 of 2010
Thenmozhi ... Petitioner
Vs.
1.The State of Tamil Nadu,
rep. by its Secretary to Government,
Home, Prohibition and
Excise Department.,
Secretariat,
Chennai 9.
2. The District Collector and
District Magistrate,
Namakkal District. ... Respondents
Petition under Article 226 of the Constitution of India, seeking to issue a writ of Habeas Corpus, to direct the respondents to produce the body of the petitioner's husband namely Kumar, aged 34 years, S/o Chinnandi, who is detained in Central Prison, Salem before this Court and set him at liberty forthwith by calling for the records pursuant to the detention order made in C.M.P. No.3/Goonda/2010/M1 dated 27.3.2010 on the file of the second respondent and quash the same.
For Petitioner : Mr. R. Nalliyappan
For Respondents : Mr. M. Babu Muthu Meeran,
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 C.M.P. No.3/Goonda/2010/M1 dated 27.3.2010, whereby her husband Kumar 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 six adverse cases viz. (i) Crime No.641 of 2008 registered by Velur Police Station for the offence under Section 380 of the Indian Penal Code; (ii) Crime No.642 of 2008 registered by Velur Police Station for the offence under Section 380 of the Indian Penal Code; (iii) Crime No.229 of 2010 registered by Namakkal Police Station for the offence under Section 379 of the Indian Penal Code; (iv) Crime No.231 of 2010 registered by Namakkal Police Station for the offence under Section 379 of the Indian Penal Code; (v) Crime No.234 of 2010 registered by Namakkal Police Station for the offence under Section 379 of the Indian Penal Code; (vi) Crime No.239 of 2010 registered by Namakkal Police Station for the offence under Section 379 of the Indian Penal Code and one ground case in Crime No.242 of 2010 registered by Namakkal police station for the offence under Section 387 of the Indian Penal Code for the incident that had taken place on 4.2.2010 and the detenu was arrested on the very day, the Detaining Authority, on scrutiny of materials placed, passed the detention order, after arriving at the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order, which is the subject matter of challenge before this Court.
4. Learned counsel appearing for the petitioner, while advancing arguments, raised two grounds to set aside the detention order. Firstly, the detenu has not filed any bail application in anyone of the cases either in the adverse cases or in the ground case. But the Authority has observed in paragraph 4 of the detention order that there was a real possibility of the detenu coming out on bail. The said observation is without any basis. Secondly, though it is stated in the very same paragraph that in similar cases, bail was granted by the Court of criminal jurisdiction, no material was furnished to make effective representation, which would clearly indicate the fact of non-application of mind on the part of the Detaining Authority.
5. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
6. 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 six adverse cases and one ground case as referred to above, and has recorded its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order.
7. It is an admitted position that the detenu has not filed any bail application in anyone of the cases either in the adverse cases or in the ground case. But the Authority has observed in paragraph 4 of the detention order as follows:-
” 4. I am aware that Thiru. Kumar was remanded upto 18.2.2010 as per the order of the Judicial Magistrate No.I, Namakkal and lodged at Central Prison, Salem in Namakkal Police Station Crime No.242/2010 u/s. 387 IPC. His remand period extended upto 01.04.2010. He has not filed any bail application so far. I am also aware that there is a real possibility of his coming out on bail, later by filing a bail application before the same or higher Courts for the above case, since in similar cases, bails are granted by the concerned Court of Higher Courts after lapse of time. If he comes out on bail, he will indulge in further activities which will be prejudicial to the maintenance of public peace. 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 peace.
On the materials placed before me, I am fully satisfied that the said Thiru. Kumar is a Goonda as defined in section 2(f) of the Tamil Nadu Act 14 of 1982 and there is a compelling necessity to detain him under Section 3(1) of the said Act, in order to prevent him from indulging in such further activities in future which are “prejudicial to the maintenance of public peace” as defined in explanation to clause (a) of section 2(iii) of the Tamil Nadu Act 14 of 1982.”
7. From the above, it is quite clear that the observation of the Detaining Authority is without any material. 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. Apart from this, it is stated in the very same paragraph that in similar cases, bail was granted by the Court of criminal jurisdiction, but no material was furnished to make effective representation, which would clearly indicate the fact of non-application of mind on the part of the Detaining Authority. On these grounds, the order of detention has got to be set aside.
8. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in C.M.P. No.3/Goonda/2010/M1 dated 27.3.2010. The detenu, namely, Kumar, who is now confined at Central Prison, Salem is directed to be set at liberty forthwith unless his custody/detention is required in connection with any other case.
ssa.
To
1.The Secretary to Government,
The State of Tamil Nadu,
Home, Prohibition and
Excise Department.,
Secretariat,
Chennai 9.
2. The District Collector and
District Magistrate,
Namakkal District