IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 26.08.2010 CORAM: THE HON'BLE MR.JUSTICE M. CHOCKALINGAM AND THE HON'BLE MR.JUSTICE M. SATHYANARAYANAN H.C.P. No.739 of 2010 K. Velayutham ... Petitioner Vs. 1.The State of Tamilnadu, rep. by its Secretary to Government, Home, Prohibition and Excise Department., Chennai – 600 002. 2. The District Collector and District Magistrate, Thiruvallur District, Thiruvallur. ... Respondents Petition under Article 226 of the Constitution of India, seeking to issue a writ of Habeas Corpus, to call for the records relating to the detenu's detention order passed by the second respondent in his order in B.D.F.G.I.S.S.V. No.76/2009 dated 6.11.2009 and approved by the first respondent nd set aside the same and produce the detenu K.Velayutham, son of Subramani, aged about 25 years, now detained in Central Prison, Puzhal, Chennai – 600 066 before this Court and set him at liberty. For Petitioner : Mr. E.R.K. Moorthy For Respondents : Mr. V.R. Balasubramaniam, Additional Public Prosecutor O R D E R (Order of the Court was made by M. CHOCKALINGAM,J) This petition is brought forth by the detenu himself challenging the order of the second respondent in B.D.F.G.I.S.S.V. No.76/2009 dated 6.11.2009, whereby he was ordered to be detained as a Goonda under the provisions of the Act 14 of 1982. https://hcservices.ecourts.gov.in/hcservices/ 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 five adverse cases viz. (i) Puttur Police Station Crime No.139 of 2007 for the offence under Section 379 of the Indian Penal Code; (ii)Uthukottai Police Station Crime No.63 of 2008 for the offence under Section 379 of the Indian Penal Code; (iii) Pichattoor police station Crime No.58 of 2009 for the offence under Section 379 of the Indian Penal Code; (iv) Sathyavedu police station Crime No.55/09 for the offence under Section 379 of the Indian Penal Code; (v) Uthukottai Police Station Cr.No.557/09 for the offence under Section 379 of the Indian Penal Code and one ground case in Crime No.559 of 2009 registered by Uthukottai police station for the offences under Sections 341, 392, 506(2) of the Indian Penal Code for the incident that had taken place on 7.7.2009 and the detenu was arrested on 8.7.2009, 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 has pointed out that there was a long delay in passing the detention order. When the detenu was arrested and remanded to judicial custody on 8.7.2009, an order of detention came to be passed on 6.11.2009 i.e. after the interval of four months. Apart from that, in the instant case, the petitioner has not moved for bail before any Court of criminal law, though remand was extended number of times. But the Authority has observed in the detention order that there was a real possibility of detenu coming out on bail, which is without any material much less cogent material. Both these grounds would indicate that the Authority has not applied its mind before recording its subjective satisfaction, which would be sufficient to set aside the order. 5. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6. 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 five 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. https://hcservices.ecourts.gov.in/hcservices/ 7. As rightly pointed out by the learned counsel for the petitioner, when the detenu was arrested and remanded to judicial custody in respect of Crime No.559 of 2009 on 8.7.2009, an order of detention came to be passed on 6.11.2009 i.e. after an interval of nearly four months. Even during this interval of four months, this Court is unable to notice any explanation given by the Sponsoring Authority nor placed before the Detaining Authority for the Authority to arrive at a subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order. In paragraph No.5(i) of the detention order, the Detaining Authority has observed as follows:- " 5(ii) I am aware that Velayutham has been remanded to judicial custody by the Judicial Magistrate, Uthukottai on 8.7.2009 and lodged in Central Prison, Puzhal, Chennai as per the Uthukottai Police Station Crime No.559/2009 u/s 341, 392, 506(ii) IPC and his remand period is upto 22.07.2009, 05.08.2009, 19.08.2009, 02.09.2009, 16.09.2009, 30.09.2009, 11.10.2009, 28.10.2009 and further extended by upto 11.11.2009. Now he is a remand prisoner. He has not filed bail petition so far. There is real possibility of coming out on bail. Velayutham is likely to indulge in such further prejudicial activities in future as well and therefore there is compelling necessity to pass this order of detention with a view to prevent him from indulging in such prejudicial activities in future." 8. From the very reading, it is clear that in Crime No.559 of 2009, the detenu was actually remanded upto 22.7.2009 and the same was extended on 05.08.2009, 19.08.2009, 02.09.2009, 16.09.2009, 30.09.2009, 11.10.2009, 28.10.2009 and further extended upto 11.11.2009. and thus, it would be quite clear that from the time of arrest and produced before hte Court on 8.7.2009, the remand was extended all along the period for nearly four months. There is nothing to indicate that the detenu has moved any bail before any Criminal Court of law during the interregnum period. 9. Under such circumstances, recording subjective satisfaction by the Detaining Authority is without any basis and this has got to be rejected on the ground of non application of mind for the reason that the detenu is in custody during the interregnum period and not even one bail application was filed, but the Authority has contrarily observed that there was a real possibility of the detenu coming out on bail. Thus, it would be quite clear that there was no material much less cogent material to pass such an order https://hcservices.ecourts.gov.in/hcservices/ of detention after recording its subjective satisfaction. Under such circumstances, the detention order has got to be set aside on these grounds. 10. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in B.D.F.G.I.S.S.V. No.76/2009 dated 6.11.2009. The detenu, namely, K.Velayutham, 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. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssa. To 1. The Secretary to Government, Home, Prohibition and Excise Department., Chennai – 600 002. 2. The District Collector and District Magistrate, Thiruvallur District, Thiruvallur. 3. The Superintendent, Central Prison, Puzhal, Chennai - 66. 4. The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai -9. 5. The Public Prosecutor, High Court, Madras. 1 cc To Mr.E.R.K.Moorthy & Anand, Advocate, SR.63147. H.C.P. No.739 of 2010 TS(CO) RVL 16.09.2010 https://hcservices.ecourts.gov.in/hcservices/