IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29-09-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN HCP No.1399 of 2010 Malleeswari .. Petitioner Vs 1.State Government, rep. by the Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai-600 009. 2.The District Collector and District Magistrate, Dharmapuri District, Dharmapuri. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus to call for the records pertaining to detention order passed by the second respondent in proceedings S.C.No.09/2010 dated 02.03.2010, quash the same and to produce the detenu Viz., Gunasekaran @ Udayakumar @ Kumar S/o Ramar now confined at Central Prison, Salem, before this Court and set him at liberty. For Petitioner : Mr.S.Pushpakaran For Respondents : Mr.Babu Muthu Meeran Additional Public Prosecutor ORDER (Order of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of the second respondent made in S.C.No.09 of 2010 dated 02.03.2010, whereby the husband of the petitioner namely the detenu Viz., Gunasekaran @ Udayakumar @ Kumar S/o Ramar was ordered to be detained as a "Goonda" under sub- section (1) of Section 3 of 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) read with the order issued by the Government in G.O.(D) No.21, Home https://hcservices.ecourts.gov.in/hcservices/ Prohibition and Excise (XVI) Department, dated 18.01.2010 under sub- Section (2) of section 3 of the said Act. 2. The affidavit filed in support of the petition along with all the materials including the order under challenge are perused. The Court heard the learned Counsel for the petitioner. 3. Pursuant to the recommendation made by the sponsoring authority that the detenu has involved in five adverse cases and also a ground case in Crime No.43 of 2010 of Pappireddippatti Police Station under Sections 384 and 392 IPC for an occurrence that had taken place on 31.01.2010, the detaining authority, after scrutiny of the materials available on record, took a view that it is a fit case for making an order of preventive detention under Tamil Nadu Act 14 of 1982 and accordingly, all materials in respect of those cases were placed before the detaining authority along with the recommendation. On scrutiny of the materials available, the detaining authority was satisfied after recording the subjective satisfaction that the activities of the detenu indulging in are prejudicial to the maintenance of public order and hence, in order to prevent him from indulging in such activities, an order of detention has got to be made under the provisions of the Act and accordingly, he made the order, which is the subject matter of challenge in this petition. 4. The learned Counsel, while advancing arguments on behalf of the petitioner, raised two points. Firstly, the order under challenge came to be passed on 02.03.2010, but the grounds of detention and the connected papers were supplied only on 09.03.2010, which is out of time and it is violative of mandate under Section 8 (1) of the Act 14 of 1982 and therefore, the order has got to be set aside. 5. Secondly, as far as three adverse cases viz., 3, 4 and 5 and ground case are concerned, he filed bail applications in all the cases and they were pending. The third adverse case was filed under Sections 302, 364, 365, 404, 394, read with 397, 302 read with 368, 413 and 414 IPC and 4th and 5th adverse cases were registered under Sections 394 and 397 IPC and the ground case was registered under Sections 384 and 392 IPC. In the ground case, which is filed under Sections 384 and 392 IPC in Crime No.43 of 2010 of Pappireddippatty Police Station, the detenu has not moved any bail application, but the authority has stated that there is real possibility of the detenu coming out on bail by filing bail application for the above case, since in similar cases, bails are granted by the concerned Court or Higher Courts after lapse of time. Even before filing of the bail application, the detaining authority held that there was real possibility or imminent possibility of his coming out on bail and has also observed that if he comes out on bail, he would indulge in future activities and thus it would clearly indicate that there was non-application of mind and in such circumstance, the detenu is entitled to be set at liberty and the order under challenge has got https://hcservices.ecourts.gov.in/hcservices/ to be set aside. 6. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 7. It is not in controversy that the order of detention came to be set aside on the grounds recorded above. As rightly pointed out by the learned Counsel for the petitioner, though the impugned detention order came to be passed on 02.03.2010, a copy of the same and the grounds of detention and connected papers were supplied to the detenu only on 09.03.2010. From a reading of the detention order and grounds, it is quite clear that the copies of the adverse cases and the ground case, were to be supplied to the detenu not exceeding five days from the date of the order of detention. In the present case on hand, though the impugned detention order was passed on 02.03.2010, it was supplied to him only on 09.03.2010, which is violative of the mandatory provision. 8. Apart from that, the adverse cases 3, 4 and 5 are concerned, viz., third adverse case was registered under Sections 302, 364, 365, 404, 394, read with 397, 302 read with 368, 413 and 414 IPC and 4th and 5th adverse cases under Sections 394 and 397 IPC and the ground case under Sections 384 and 392 IPC and the occurrence relating to adverse cases 3, 4 and 5 took place on 29.01.2010 and the ground case, which was filed under Sections 384 and 392 IPC, was registered on 31.01.2010. Though bail application was not filed by the detenu before any court of criminal law in respect of ground case, on the contrary, the detaining authority observed in the detention order that there is real possibility of the detenu coming out on bail by filing bail application for the above case, since in similar cases bails are granted by the concerned Court or Higher Courts after lapse of time. When the case has been filed for an offence of a grave nature, apart from third adverse case, which was filed under Section 302 IPC, in which ordinarily the Court could not grant bail, it was only the expression of the impression which was passing in the mind of the authority. Under the circumstances, this Court is of the considered opinion that it can be well stated that the order suffers from infirmity and it is liable to be set aside. 9. Accordingly, this Habeas Corpus Petition is allowed, setting aside the impugned order of the second respondent. The detenu is directed to be set at liberty forthwith, unless his presence is required in connection with any other case. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar raa https://hcservices.ecourts.gov.in/hcservices/ To: 1.The Secretary to Government, State Government, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai-600 009. 2.The District Collector and District Magistrate, Dharmapuri District, Dharmapuri. 3.The Superintendent, Central Prison, Salem. 4.The Joint Secretary to Government, Public (Law & Order) Department, Fort St.George, Chennai-9. 5.The Public Prosecutor High Court, Madras. 1 cc to Mr.S.Pushpakaran, Advocate, Sr.No.72195 HCP No.1339 of 2010 RSY {CO} TP/13.10.2010. https://hcservices.ecourts.gov.in/hcservices/