IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.07.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.No.144 of 2008 Puliankottai @ Elango .. Petitioner -Vs- 1. State of Tamil Nadu rep.by Secretary to Government Prohibition and Excise Department Fort St.George Chennai 600 009 2. The Commissioner of Police Chennai Police Chennai 600 008 .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Habeas Corpus, calling for the records of the second respondent made in detention order No.429/07 dated 20.12.07 and quash the same and directing the respondents to produce the detenu viz., Puliankottai @ Elango, S/o Purusalingam now undergoing detention in Central Prison, Puzhal, Chennai before this Hon'ble Court and set him at liberty. For Petitioner :: Mrs.Jayasri Baskar For Respondents :: Mr.M.Babu Muthu Meeran Addl. Public Prosecutor ORDER
(Order of the Court was delivered by D.MURUGESAN, J.)
The detenu himself is the petitioner in this petition. He has been branded as a ‘Goonda’ and detained under sub-section (1) of Section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) by the impugned order of detention dated 20.10.2007 passed by the second respondent.
2. The prime attack of the detention order is that in the absence of any material to show that the detenu would file a bail application and there is a possibility of coming out on bail, the satisfaction said to have been arrived by the detaining authority to the said effect is unsupported by materials and consequently vitiates the order of detention.
3. We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondents.
4. On the facts of this case, we find that the detenu is involved in three adverse cases and the third adverse case is in respect of an offence under Sections 341, 302 and 506(2) IPC. In respect of the third adverse case, he surrendered on 16.10.2007 and while he was in custody, he was shown formal arrest in the ground case on 25.10.2007. It appears that the co-accused in the third adverse case filed a bail application and the same was rejected on 23.11.2007. There is absolutely no material to show that the detenu had either filed a bail application or had taken steps to file such an application for bail. Factually the detenu has not filed any bail application either in the third adverse case or in the ground case.
5. In order to arrive at the subjective satisfaction, the detaining authority must first consider whether there are materials to show that the detenu would file any bail application and secondly if such bail application is filed, the same would be considered and there is a possibility of coming out on bail.
6. Insofar as the first limb of the above, there is absolutely no material to show that the detenu has either filed a bail application or has taken steps to file such an application. In the absence of any material, the satisfaction arrived by the detaining authority that he may file a bail application is unsustainable.
7. Insofar as the second limb of the above, even assuming that such an application is filed, given the facts and circumstances of this case, the co-accused who is also similarly placed like the petitioner had filed a bail application in the third adverse case and the same was rejected on 23.11.2007. Hence the satisfaction of the detaining authority that the bail application may be considered and there is a possibility of the detenu coming out on bail is not supported by any material.
8. In view of the above, we find that the order of detention suffers from non application of mind as to the fact that the detenu may file a bail application and would come out on bail. On this ground the detention order gets vitiated. Accordingly, the habeas corpus petition is allowed and the impugned order of detention dated 20.12.2007 passed by the second respondent is set aside. The detenu shall be set at liberty forthwith, unless he is required in connection with any other case.
Index : yes ` (D.M.,J.) (S.P.V.,J.)
Internet: yes 01.07.2008
ss
To
1. The Secretary to Government
of Tamil Nadu
Prohibition & Excise Department
Fort St.George
Chennai 600 009
2. The Commissioner of Police
Chennai Police
Egmore
Chennai 600 008
3. The Public Prosecutor
High Court, Madras
D.MURUGESAN, J.
and
S.PALANIVELU, J.
H.C.P.No.144 of 2008
01.07.2008