(Order of the Court was made by M.CHOCKALINGAM, J) Challenge is made to an order of the first respondent in H.S.(MD)Confdl.No.40/2008 dated 30.08.2008 whereby son of the petitioner was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Boot-Leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) terming him as a "Goonda".
2. The Court heard the learned counsel appearing for the petitioner and looked into all the materials available including the order under challenge.
3. It is not in controversy that the detenu was involved in four adverse cases, which are as follows:-
Sl Name of the Police station Crime No. and Section of law No.
1 Kovilpatti West P.S. Cr.No.115/2006 u/s.
294(B), 323, 506(i) IPC 2 Kovilpatti West P.S. Cr.No.185/2008 u/s. 75 MCP Act 3 Kovilpatti East P.S. Cr.No.204/2008 u/s. 379 IPC 4 Koppampatti Police Station Crime No.43/2008 u/s.341, 294 (b),
387,506(II) IPC Apart from that, the detenu was involved in one ground case in Crime No.465/2008 under
Sections 341,294(B),387,506(II) of IPC registered by Kovilpatti West P.S. for the incident that took place on 9.8.2008. Pursuant to the recommendation made by the sponsoring authority that the detenu was involved in four adverse cases and one ground case, after scrutiny of the materials available, the detaining authority recorded his subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and that he should be detained as a "Goonda" and accordingly, made the order of detention, which is the subject matter of challenge before this Court.
4. Learned counsel for the petitioner in his sincere attempt of assailing the order brought to the notice of the Court, the following three grounds:-
(i) Firstly, there was an extension of remand sought by the Kovilpatti Police in the ground case in Crime No.465/2008, at that time, it was specifically stated that necessary steps were being taken to detain the detain under the Tamilnadu Act 14/1982 and hence, they required extension of remand.
(ii) Secondly, Bail applications filed before the Judicial Magistrate No.2, Kovilpatti in Crl.M.P.No.3802/2008 and 3888/2008 in connection with the case in Crime No.465/2008 and No.43/2008 came to be dismissed on 18.8.2008 and 20.8.2008 respectively on the same ground that steps were being taken to detain the detenu.
(iii) Thirdly, after the bail applications came to be dismissed as referred to above, no bail application was filed or was pending before any Court of criminal law either in the ground case or adverse case. But, it was recorded in the course of the order of detention that there was a real possibility of the detenu coming out on bail by filing another bail applications for the above cases before the same Court or higher Court. It was only an apprehension in the mind of the detaining authority without any material or basis whatsoever. Hence, the order under challenge would suffer.
5. The Court heard the learned Additional Public Prosecutor on the above contention and paid its anxious consideration on the submissions made.
6. It is not in controversy that the detenu was involved in four adverse cases and in one ground case and the detenu was arrested in the ground case in Crime No.465/2008 on 9.8.2008 and produced before the Judicial Magistrate No.2, Kovilpatti. There was an extension of remand sought by the Kovilpatti Police in the ground case, at that time, it was specifically stated that necessary steps were being taken to detain the detain under the Tamilnadu Act 14/1982 and hence, they required extension of remand. It would be an indicative of the fact that the authorities had an intention to detain the detenu under the Act 14/1982, which would vitiate the order of detention.
7. Further, the Bail applications filed before the Judicial Magistrate No.2, Kovilpatti in Crl.M.P.No.3802/2008 and 3888/2008 in connection with the case in Crime No.465/2008 and No.43/2008 came to be dismissed on 18.8.2008 and 20.8.2008 respectively on the same ground that steps were being taken to detain the detenu. This also shows that the authorities had made up their mind to detain the detenu under the Tamil Nadu Act 14/1982. Hence, the order under challenge would suffer.
8. Apart from that, after the bail applications came to be dismissed as referred to above, no bail application was filed or was pending before any Court of criminal law either in the ground case or adverse cases. But, it was recorded in the course of the order of detention that there was a real possibility of the detenu coming out on bail by filing another bail applications for the above cases before the same Court or higher Court. It was only an apprehension in the mind of the detaining authority without any material or basis whatsoever. Mere apprehension in the mind of the detaining authority would not be sufficient. To pass such an order, there must be specific material in the hands of the detaining authority. But, in the instant case, no material was available for the authority. Hence, the order under challenge would suffer.
9. On these grounds referred to above, the order of detention has got to be set aside. Accordingly, the order of detention is set aside. The detenu is directed to be set at liberty forthwith unless he is required in connection with any other case. The Habeas Corpus Petition is allowed.
asvm To
1.The Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai - 9.
2.District Collector and District Magistrate, Thoothukudi District, Thoothukudi.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4. The Superintendent Central Prison, Palayamkottai
5. The Joint Secretary to Government of TamilNadu Public (Law & Order) Department Fort St. George, Chennai - 9