IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 7-1-2011 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN H.C.P.No.2220 of 2010 Balu @ Pattasu Balu .. Petitioner vs 1.The State of Tamilnadu Rep. By its Secretary to Government Home, Prohibition and Excise Department Chennai 9. 2.The Commissioner of Police Egmore, Greater Chennai Chennai 8. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus calling for the records relating to the detenu's detention order passed by the second respondent dated 18.9.2010 in No.526/BDFGISSV/2010 and setting aside the same and producing the detenu Balu @ Pattasu Balu, son of Kothandan, aged about 26 years, now detained in Central Prison II, Chennai, before this Court and set him at liberty. For Petitioner : Mr.V.Parthiban Amicus Curiae For Respondents : Mr.V.R.Balasubramaniam Additional Public Prosecutor ORDER (Order of the Court was made by M.CHOCKALINGAM, J.) This petition challenges an order of detention made by the second respondent, the Commissioner of Police, Greater Chennai, Chennai, in No.526/BDFGISSV/2010 dated 18.9.2010, whereby the petitioner detenu was ordered to be detained under the provisions of Act 14 of 1982 terming him as a Goonda. 2.The Court heard the learned Counsel for the petitioner and all the materials available and in particular, the order under challenge, are looked into. https://hcservices.ecourts.gov.in/hcservices/ 3.It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the petitioner detenu was involved in eight adverse cases namely (1) Sri Ramachandra Medical College PS Cr.No.100/2008 under Sections 457 and 380 of IPC; (2) R3 Ashok Nagar PS Cr.No.179/2009 under Sec.379 of IPC; (3) R3 Ashok Nagar PS Cr.No.194/2009 under Sec.379 IPC; (4) G7 Chetpet PS Cr.No.18/2010 under Sections 457 and 380 IPC; (5) K7 ICF PS Cr.No.280/2010 under Sec.379 IPC; (6) G7 Chetpet PS Cr.No.491/2010 under Sec.379 @ 392 IPC; (7) K7 ICF PS Cr.No.452/2010 under Sec.379 IPC and (8) K7 ICF PS Cr.No.486/2010 under Sec.379 IPC, and also in a ground case registered by G7 Chetpet PS in Crime No.546/2010 under Sections 341, 294(b), 392, 397, 336 and 506(ii) IPC for an occurrence that had taken place on 28.8.2010, the detaining authority on scrutiny of the entire materials took the view that the detenu has indulged in such activities which would be prejudicial to the maintenance of public order and hence he has got to be termed as a Goonda and passed the order under challenge. 4.Advancing arguments on behalf of the petitioner, the learned Counsel would submit that in the instant case, he was actually arrested in the sixth adverse case and also in the ground case on 28.8.2010; that the sixth adverse case was registered under Sec.379 IPC @ 392 IPC, and the ground case was registered under Sections 341, 294(b), 392, 397, 336 and 506(ii) IPC; that while the matter stood thus, he did not move for bail in neither of these cases; but, the authority has stated that there was a real possibility of his coming out on bail; and that this observation made by the authority, was actually without material, much less cogent material. 5.Added further the learned Counsel pointing to the grounds of detention that the seventh adverse case was actually shown as Crime No.452/2010, which was registered by the K7 ICF PS on 14.8.2010; that contrarily, the eighth adverse case shown as Crime No.486/2010, was registered by the same Police Station on 26.6.2010; that even if it is a mistake that has crept in, it would be indicative of the non- application of mind on the part of the authority; that under the circumstances, the authority should have called for a clarification from the sponsoring authority, but failed to do so, and hence the order is vitiated and it has got 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.After looking into the available materials and hearing the submissions made, this Court is of the considered opinion that it is a fit case where the order of detention has got to be set aside for the following reasons. 8.Admittedly, the petitioner detenu was arrested on 28.8.2010, in the sixth adverse case and also in the ground case. Both these cases were admittedly registered under Sec.397 IPC @ 392 IPC and under Sections 341, 294(b), 392, 397, 336 and 506(ii) IPC respectively. But, he has not moved any bail application. It is actually found in the detention order itself. But, the authority has stated that there was a https://hcservices.ecourts.gov.in/hcservices/ real possibility of the detenu coming out on bail. At this juncture, it is pertinent to point out that when the authority observes that there was a real possibility of the detenu coming out on bail, it should be based on materials and also cogent materials. In order to fortify the same, this Court can rely upon the decision of the Apex Court reported in (2006) 3 SCC (CRI) 17 (IBRAHIM NAZEER V. STATE OF T.N. AND ANOTHER), and also the Full Bench decision of this Court which followed the above decision of the Apex Court, reported in 2005-2-L.W. (CRL.) 946 (K.THIRUPATHI V. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, TIRUCHIRAPALLI DISTRICT AT TIRUCHIRAPALLI AND ANOTHER). 9.In (2006) 3 SCC (CRI) 17, it has been held thus: "It has to be noted that whether prayer for bail would be accepted depends on the circumstances of each case and no hard-and-fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be an ipse dixit of the detaining authority. On the basis of materials before it, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail." 10.It has been held in 2005-2-L.W. (CRL.) 946 as follows: "There must be cogent material before the Authority passing the detention order for inferring that the detenu was likely to be released on bail. This inference must be drawn from material on record and must not be the ipse dixit of the Authority passing the detention order." 11.The reading of the above decisions would make it abundantly clear that when the authority makes an observation that there was a real possibility of the detenu coming out on bail, before recording its subjective satisfaction, it should arrive or record so on the materials available, and that too, it must be cogent material. In the case on hand, both the sixth adverse case and the ground case were registered one under Sec.397 IPC @ 392 IPC and the other under Sections 341, 294 (b), 392, 397, 336 and 506(ii) IPC, and he was actually arrested on 28.8.2010. The order came to be passed on 18.9.2010. In the intervening circumstances, there was no other material, and no bail application was also made. In such circumstances, it cannot be stated that there was any material, much less cogent material as per the decisions cited supra. Hence, this Court has to necessarily agree with the learned Counsel for the petitioner in order to set aside the order under challenge. 12.Apart from the above, as rightly pointed out by the learned Counsel for the petitioner, in the grounds of detention, the seventh adverse case is shown as Crime No.452/2010, and the occurrence is shown to have taken place on 14.8.2010. The eighth adverse case is shown as Crime No.486/2010, and the occurrence has taken place on 26.6.2010, much earlier to the above. It remains to be stated that both these cases were registered by the very same police station namely K7 ICF PS. At this juncture, the learned Additional Public Prosecutor for the https://hcservices.ecourts.gov.in/hcservices/ State came with an answer that it was a typographical error. But, this Court is able to see that it is found in the grounds of detention itself, and if to be so, a clarification should have been called for by the detaining authority. If it has got to be accepted, then it would be indicative of the non-application of mind on the part of the authority who has made the order under challenge. Under the circumstances, this Court is of the view that both these grounds have got to be applied for setting aside the order. 13.Accordingly, this petition is allowed setting aside the order of detention passed by the second respondent, and the detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case. Mr.V.Parthiban, Amicus Curiae, is entitled to get remuneration from the Legal Aid, Madras. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Secretary to Government Home, Prohibition and Excise Department Chennai 9. 2.The Commissioner of Police Egmore, Greater Chennai Chennai 8. 3.The Public Prosecutor High Court, Madras. 4.The Officer Incharge, Legal Aid Services Authority, High Court,Madras. 5.The Superintendent, Central Prison-II,Puzhal, Chennai-66. 6.The Joint Secretary to Govt. Public(Law & Order) Department, Fort St.George, Chennai-9. +1cc to Mr.V.Parthiban, Advocate Sr 1631 GG(CO) km/1.2. H.C.P.No.2220 of 2010 https://hcservices.ecourts.gov.in/hcservices/