In the High Court of Judicature at Madras
Dated: 08/08/2005
Coram
The Honourable Mr.Justice P.SATHASIVAM
and
The Honourable Mr.Justice AR.RAMALINGAM
H.C.P. No.449 of 2005
Krishna Singh ..Petitioner
-Vs-
1. State of Tamil Nadu,
rep.by its Secretary,
Prohibition and Excise Department,
Fort St.George,
Chennai-9.
2. The Commissioner of Police,
Greater Chennai,
Chennai-8. ..Respondents
Habeas Corpus Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Habeas Corpus, calling for the records of the 2nd
respondent pertaining to the order of detention made in 266 /BDFGIS/2004 dated
24.09.2004, and quash the same and to direct the respondents to produce the
detenu by name Krishna Singh, son of Muni Singh detained in Central Prison,
Chennai before this Court and set him at liberty.
!For Petitioner : Mr.A.Abdul Lathif
^For Respondents : Mr.V.Arul,
Govt.Advocate (Crl.Side)
:ORDER
(Order of the Court was made by P.SATHASIVAM, J.,)
The detenu, viz., Krishna Singh, challenges the impugned order of
detention dated 24.09.2004, detaining him as “Goonda” under Section 3 (1) of
the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug
Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum
Grabbers Act, 1982 (in short “Tamil Nadu Act 14 of 1982”).
2. Learned counsel appearing for the petitioner, by drawing our
attention to para 4 of the grounds of detention, would submit that in the
absence of imminent possibility of the detenu being coming out on bauil by
filing bail application, the decision arrived by the detaining authority for
detaining him as ‘goonda’ cannot be sustained. The following reference in
para 4 is extracted hereunder;
“4. I am aware that Thiru Krishna Singh is in remand in F5 Chetpet Police
Station Crime No.792/2004 and he has not moved any bail application so far. I
am also aware that there is possibility of his coming out on bail for the
above case since in similar cases bails are granted by the Sessions Court and
Higher Courts. If he comes out on bail, he will indulge in further
activities, which will be prejudicial to the maintenance of public order.
….”
It is clear that though the detenu is in remand, he has not moved any bail
application so far. In such circumstance, unless the detaining authority
possessed required materials to show that there is imminent possibility of his
coming out on bail, merely on the ground of mere possibility of his coming out
on bail, detention order cannot be clamped.
3. In this regard, it is useful to refer the earlier decision of us
rendered in HCP.No.284 of 2005 dated 27.06.2005, wherein after considering
similar observation / conclusion of the detaining authority and the decision
of the Apex Court in Kamarunnissa vs. Union of India (1991 (1) SCC 128 :
1991 SCC (Cri) 88) and in Velmurugan @ Velu v. The Commissioner of Police
(2005 (1) CTC 577), we have held that,
“In the absence of such an essential requirement, viz., ‘such release was
likely or that it was imminent’, it has to be held that the order of detention
is vitiated. … ”
4. In the light of the principles enunciated in the above referred
decisions and in view of the statement made in para 4 of the grounds of
detention, we are of the view that the impugned order of detention is liable
to be set aside, accordingly, set aside and this petition is allowed. The
detenu is directed to be set at liberty forthwith from the custody unless he
is required in connection with any other case.
Index:Yes.
Internet:Yes.
gl
To
1. The Secretary to Government,
Prohibition and Excise Department,
Fort St.George,
Chennai-9.
2. The Commissioner of Police,
Greater Chennai,
Chennai-8.
3. The Superintendent,
Central Prison,
Chennai.
(in duplicate for communication to detenu)
4. The Joint Secretary to Govt.,
Public (Law & Order),
Fort St.George,
Chennai-9.
5. The Public Prosecutor,
High Court, Madras.