IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:- 27.08.2010
CORAM:
THE HON'BLE MR.JUSTICE M. CHOCKALINGAM
AND
THE HON'BLE MR.JUSTICE M. SATHYANARAYANAN
H.C.P. No.763 of 2010
Prakash ... Petitioner
Vs.
1.The Secretary to the Government, Home,
Prohibition and Excise Department,
Secretariat,
Chennai 600 009.
2. The Commissioner of Police,
Chennai City, Chennai 8. ... Respondents
Petition under Article 226 of the Constitution of India, seeking to issue a writ of Habeas Corpus, to call for the records in connection with the order of detention passed by the second respondent dated 12.4.2010 in Memo No.209/BDFGISSV/2010 against the petitioner Prakash S/o. Ponnurangam, who is, now confined at Central Prison, Puzhal, Chennai and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.
For Petitioner : Mr. S. Senthil Vel
For Respondents : Mr. 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 detenu himself challenging the order passed by the second respondent dated 12.4.2010 in Memo No.209/BDFGISSV/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) R-7 K.K. Nagar Police Station Crime No.193/2010 for the offences under Sections 341, 323, 394 and 506(ii) of the Indian Penal Code and (ii) R-3 Ashok Nagar Police Station Crime No.208/2010 for the offences under Sections 341, 384 and 506(ii) of the Indian Penal Code and one ground case in Crime No.197 of 2010 registered by R-7 K.K. Nagar Police Station for the offences under Sections 341, 323, 336, 427, 394, 307 and 506(ii) of the Indian Penal Code for the incident that had taken place on 23.3.2010 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 submit that in the ground case in Crime No.197 of 2010, the detenu has moved a bail application before the Court of Principal Sessions, Chennai in Crl.M.P. No.3054 of 2010 and the same was dismissed and thereafter, he has not moved any bail application. The detenu has also moved a bail application in respect of first adverse case in Crime No.193 of 2010 before the 23rd Metropolitan Magistrate, Saidapet, Chennai in Crl.M.P. No.2853 of 2010 and the same was dismissed on 7.4.2010 as found in page No.40 of the booklet, On the contrary, the Authority has stated that the detenu has not moved any bail application in respect of Crime No.193 of 2010 so far, which is not correct.
5. Learned counsel would further urge that when the bail applications were moved in both the cases and the same were dismissed, the Authority has stated that there was a real possibility of the detenu coming out on bail. Hence the observation of the authority is without any basis or materials much less cogent material. On these grounds, the detention order has got to be set aside.
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.
8. It is an admitted position that in the ground case in Crime No.197 of 2010, the detenu has moved a bail application before the Court of Principal Sessions, Chennai in Crl.M.P. No.3054 of 2010 and the same was dismissed and thereafter, he has not moved any bail application. The detenu has also moved a bail application in respect of first adverse case in Crime No.193 of 2010 before the 23rd Metropolitan Magistrate, Saidapet, Chennai in Crl.M.P. No.2853 of 2010 and the same was dismissed on 7.4.2010 as found in page No.40 of the booklet, On the contrary, the Authority has stated that the detenu has not moved any bail application in respect of Crime No.193 of 2010 so far, which is not correct.
5. Apart from that though the bail applications were moved in both the cases and the same were dismissed, the Authority has stated
in the detention order on 12.4.2010 as follows:-
” 4. I am aware that Thiru. Prakash is in remand in R-7 K.K. Nagar Police Station Crime Nos.193/2010 and 197/2010 and he has moved a bail application for R-7 K.K. Nagar Police Station Crime No.197/2010 before the Court of Principal Sessions, Chennai, in Crl.M.P. No.3054/2010 and the same was dismissed and he has not moved any bail application for R-7 K.K. Nagar Police Station Crime No.193/2010 so far. The sponsoring authority has stated that the relatives of Thiru. k. Prakash are taking action to take him out on bail by filing another bail application for R-7 K.K. Nagar Police Station Crime No.197/2010 and fresh bail application for R-7 K.K. Nagar Police Station Crime No.193/2010 before the appropriate Court and since in a similar 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, within 20 days. Further, he is in judicial custody for nearly 15 days. Hence, there is a real possibility of his coming out on bail by filing another bail application for R-7 K.K. Nagar Police Station Crime No.197/2010 and fresh bail application for R-7 K.K. Nagar Police Station Crime No.193/2010 before the appropriate Court. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of public order. 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 order. On the materials placed before me, I am fully satisfied that the said Thiru.Prakash is also a Goonda and that there is a compelling necessity to detain him in order to prevent him from indulging in such further activities in future which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14 of 1982.”
From the above, it is clear that the observation of the authority is without any basis or materials much less cogent material. 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 second respondent dated 12.4.2010 in Memo No.209/BDFGISSV/2010. The detenu, namely, Prakash, 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 Secretary to the Government, Home,
Prohibition and Excise Department,
Secretariat,
Chennai 600 009.
2. The Commissioner of Police,
Chennai City,
Chennai 8