(Order of the Court was made by M. CHOCKALINGAM,J) This petition is brought forth by the sister of the detenu challenging the order of the second respondent in Memo No.100/BDFGISSV/2010 dated 3.3.2010, whereby her brother Shankar 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 three adverse cases viz. (i) G2 Periyamedu Police Station Crime No.530 of 2008 for the offence under Section 379 of the Indian Penal Code; (ii) E3 Teynampet Police Station Crime No.150 of 2010 for the offence under Section 379 @
392 of the Indian Penal Code and (iii)E4 Abhiramapuram police station Crime No.122 of 2010 for the offence under Section 379 of the Indian Penal Code and one ground case in Crime No.160 of 2010 registered by E3 Teynampet police station for the offences under
Sections 379,392,336,427 and
506(2) of the Indian Penal Code for the incident that had taken place on 11.2.2010 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 submit that the detenu has not moved any bail application in any one of the adverse cases or ground case, but the Authority, even after recording so, has observed that there is real possibility of the detenu coming out on bail, which is non-application of mind on the part of the Detaining Authority.
5. Learned counsel added further that the detenu was remanded to judicial custody in three cases viz. Crime Nos.122, 150 and 160 of 2010, but copy of remand report was not supplied to the detenu in respect of Crime No.122 of 2010. 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 three 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. It is an admitted position that the detenu has not moved any bail application in anyone of the above cases which is quite clear from paragraph 4 of the detention order which reads as follows:-
" 4. I am aware that Thiru. Shankar is in remand in E-3 Teynampet police station Crime Nos.150/2010 and 160/2010 and he has not moved any bail application so far. The sponsoring authority has stated that the relatives of Thiru. Shankar are taking action to take him on bail in the above cases. In a similar case registered under
Section 379 IPC the learned XVII Metropolitan Magistrate granted bail for R-1 Mambalam Police Station Crime No.26/2009 in Crl.M.P. No.593/2009 and hence there is real possibility of his coming out on bail in the above cases by filing bail application 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. Shankar 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."
8. From the above, it would be quite clear that the detenu has not even filed any bail application, but the Authority has made the above observation 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, a copy of remand order in Crime No.122 of 2010 was not supplied and in the booklet also, there is no document to prove the same. When the remand order is the relied on document while passing the detention order, law would expect that a copy of the same should be supplied to the detenu, but not done so in this case. 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 Memo No.100/BDFGISSV/2010 dated 3.3.2010. The detenu, namely, Shankar, 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 Government, Home, Prohibition and Excise Department., Secretariat, Chennai 600 009.
2. The Commissioner of Police, Chennai Police, Egmore, Chennai 8.
M. CHOCKALINGAM, J. & M. SATHYANARAYANAN, J.
ssa.
H.C.P. No.632 of 2010 24.08.2010