(Order of the Court was made by M. CHOCKALINGAM,J) This petition is brought forth by the father of the detenu challenging the order of the second respondent in order No.82 of 2010 dated 20.2.2010, whereby the detenu Appu @ Anbazhagan 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) N-2 Kasimedu Police Statiion Crime No.170 of 2008 for the offences under Sections
341,323,324,336,427,392,307 and
506(ii) of the Indian Penal Code; (ii) B-2 Esplanade Police Station Crime No.111 of 2009 for the offences under
Sections 147,148,341,302 read with 149 of the Indian Penal Code and one ground case in Crime No.905 of 2009 registered by H-5 New Washermenpet Police station for the offences under
Sections 147,148,341,326 and
307 of the Indian Penal Code for the incident that had taken place on 20.10.2009 and the detenu surrendered before the XIV Metropolitan Magistrate Court, Egmore, Chennai on 6.1.2010, the Detaining Authority, on scrutiny of materials placed by the Sponsoring Authority and after arriving at the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order, passed the detention order, which is the subject matter of challenge before this Court.
4. Advancing arguments on behalf of the petitioner, learned counsel would submit that the when the detention order was passed on 20.2.2010, no bail application was filed in the ground case. While the matter stood thus, the Detaining Authority has observed in the detention order that there was a real possibility of the detenu coming out on bail. Learned counsel added further that it was a case of murder. Hence, ordinarily before the completion of investigation, bail will not be granted in favour of the accused. In the instant case, the ground case in Crime No.905 of 2009 was registered for murder and not even a bail application was filed. Hence, the observation of the Authority is without any basis or material much less cogent material what the law would require.
5. Learned counsel added further that the special report found in page No.431 of the booklet placed before the Detaining Authority did not contain the date on which it was filed. 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 after arrived at a subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order. It is an admitted position that no bail application was filed in the ground case when the detention order was passed on 20.2.2010. Apart from this, in a case of murder, ordinarily before the completion of investigation, bail will not be granted in favour of the accused. In the instant case, the ground case in Crime No.905 of 2009 was registered for murder and not even a bail application was filed. While the matter stood thus, the Detaining Authority has observed in the detention order which reads as follows:-
" I am aware that Thiru. Appu @ Anbazhagan is in remand in H-5 New Washermenpet Police Station Crime No.905/2005 and he has not moved any bail application for the above case so far. The sponsoring authority has stated that the relatives of Thiru. Appu @ Anbazhagan are taking action to take him on bail in the above case by filing bail application before the Court and since in a similar case registered under Sections R-7 K.K. Nagar Police Station Crime No.302/2009 under
Sections 147,148,341 and
302 IPC bail was granted by the Hon'ble High Court in Crl.O.P. No.13843/2009. Further, Thiru.Appu @ Anbazhagan was on bail in the adverse cases and bail granted to his associate in the ground case and he is in judicial custody for nearly 40 days. Hence, there is real possibility of his coming out on bail in the above case by filing bail application before the adverse appropriate Court since bails are granted by Courts in similar cases. 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 that the said Thiru . Appu @ Anbazhagan is also a "Goonda" and 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."
8. From the above, it would be quite clear that when the detention order was passed by the Detaining Authority, no bail application was pending, but the Authority has observed that there was a 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.
9. Apart from this, it is noticed that a special report was laid by the Sponsoring Authority to the Detaining Authority as found in page No.431 of the booklet, which did not contain the date when it was actually placed before the Detaining authority. The mentioning of the date when it was placed before the Detaining Authority is a must since it would reflect as to whether such report containing allegations was taken into consideration by the Detaining Authority or not. In this regard, the Detaining Authority should have called for clarification from the sponsoring authority, but not done so. On these two grounds, the order of detention has got to be set aside.
10. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in Order No.82 of 2010 dated 20.2.2010. The detenu Appu @ Anbazhagan 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.
(M.C.J.) (M.S.N.J.) 24.08.2010 Index :- Yes.
Internet:- Yes.
ssa.
To
1. The Secretary to the Government, Home, Prohibition and Excise Department., Chennai 600 009.
2. The Commissioner of Police, Egmore, Chennai 600 008.
3. The Inspector of Police, H-5, New Washermenpet Police Station, Chennai.
M. CHOCKALINGAM, J. & M. SATHYANARAYANAN, J.
ssa.
H.C.P. No.655 of 2010 24.08.2010