IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 26.08.2010 CORAM: THE HON'BLE MR.JUSTICE M. CHOCKALINGAM AND THE HON'BLE MR.JUSTICE M. SATHYANARAYANAN H.C.P. No.740 of 2010 Mr. Joseph @ Joseph Immanuel ... Petitioner Vs. 1.The Commissioner of police, Greater Chennai, Egmore, Chennai 600 008. 2. The Secretary to Government, Home, Prohibition and Excise Department., Fort St. George, Madras 600 009. ... Respondents Petition under Article 226 of the Constitution of India, seeking to issue a writ of Habeas Corpus, to call for the detention order of Mr. Joseph @ Joseph Immanuel, son of Prabhu @ Kabrial, presently lodged in Central Prison, Puzhal in Memo No.135/BDFGISSV/2010 dated 11.3.2010, passed by the respondents and set aside the same. For Petitioner : Mr. C.P. Naresh Kumar For Respondents : Mr. V.R. Balasubramaniam, 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 detenu himself challenging the order of the first respondent in Memo No.135/BDFGISSV/2010 dated 11.3.2010, whereby he 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 two adverse cases viz. (i) K.10 Koyambedu Police Station Crime No.191 of 2010 for the offences under Sections 457 and 380 of the Indian Penal Code and (ii) K.10 Koyambedu Police Station Crime No.236 of 2010 for the offences under Sections 457 and 380 of the Indian Penal Code and the ground case in Crime No.273 of 2010 registered by K-10 Koyambedu police station for the offences under Sections 341, 323, 427, 397 and 506(2) of the Indian Penal Code for the incident that had taken place on 18.2.2010 and the detenu was arrested on the same 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. Advancing arguments on behalf of the petitioner, learned counsel would urge that the detenu filed bail application in the second adverse case before the V Metropolitan Magistrate Court, Egmore, Chennai in Crl.M.P. No.898 of 2010 and the same was dismissed. Thereafter, he filed bail application before the Court of Principal Sessions, Chennai in the ground case in Crime No.273 of 2010 in Crl.M.P. No.2181 of 2010 and the same was also dismissed on 10.3.2010. The detention order under challenge came to be passed on 11.3.2010. The Detaining Authority, though stated that the bail application was dismissed, not even stated the date of dismissal, on the contrary, observed that there was a real possibility of the detenu coming out on bail. The said observation is without any material much less cogent material which the law would require. The said order is infirm in view of the non-application of mind on the part of the Authority.
5. Learned counsel added further the special report alleged to have been placed by the sponsoring Authority before the Detaining Authority did not contain the date. Hence, it remains unknown whether the special report was placed by the Sponsoring Authority either before passing of the detention order or after passing of the order of detention.
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 two adverse cases and one ground case as referred to above, and has recorded the 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 filed bail application in the second adverse case before the V Metropolitan Magistrate Court, Egmore, Chennai in Crl.M.P. No.898 of 2010, the same was dismissed and thereafter, he filed bail application before the Court of Principal Sessions, Chennai in the ground case in Crime No.273 of 2010 in Crl.M.P. No.2181 of 2010 and the same was also dismissed on 10.3.2010. The detention order under challenge came to be passed on 11.3.2010. It would be quite clear that on the date of passing of detention order, no bail application was pending. However, the Detaining Authority has observed in the detention order that there was 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, which would vitiate the detention order.
5. Apart from this, the special report alleged to have been placed by the sponsoring Authority before the Detaining Authority did not contain the date. Hence, it remains unknown whether the special report was placed by the Sponsoring Authority either before passing of the detention order or after passing of the order of detention, which would vitiate the detention order. On these grounds, the detention order has got to be set aside.
10. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the first respondent in Memo No.135/BDFGISSV/2010 dated 11.3.2010. The detenu, namely, Joseph @ Joseph Immanuel, who is now confined at Central Prison, Puzhal, Chennai is directed to be set at liberty forthwith unless his custody/detention is required in connection with any other case.
ssa.
To
1.The Commissioner of police,
Greater Chennai, Egmore,
Chennai 600 008.
2. The Secretary to Government, Home,
Prohibition and Excise Department.,
Fort St. George,
Madras 600 009