IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 07.04.2010 CORAM: THE HON'BLE MR.JUSTICE M. CHOCKALINGAM AND THE HON'BLE MR.JUSTICE C.S. KARNAN HCP. No.2312 of 2009 Vatchala ... Petitioner Vs. 1.The Commissioner of Police, The Commiserate of Police, Chennai City, Chennai – 8. 2. The Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department., Fort St.George, Chennai – 9. 3. The Inspector General of Prisons, State of Tamil Nadu, Chennai – 2. ... Respondents Petition under Article 226 of the Constitution of India, seeking to issue a writ of Habeas Corpus, to set aside the order of preventive detention of the petitioner's husband, named, Rajaram, son of Beeman, the detenu, who is kept in preventive detention under section 3, sub-section 2 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Goondas, Immoral Traffic Offenders, Sand-Offenders, Slum Grabbers and Video Pirates Act, 1982, vide the orders issued by the Government of Tamil Nadu in GO (D) No.152, Home, Prohibition and Excise (XVI) Department dated 18.7.2009 on the orders passed by the first respondent and produce the body of the said Rajaram before this Court who is presently confined in Central Prison, Puzhal, Chennai and set him forth at liberty. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. B. Senguttuvan For Respondents: Mr. V.R. Balasubramanian, Additional Public Prosecutor O R D E R (Order of the Court was made by M. CHOCKALINGAM,J) This petition challenges the order of the first respondent passed in No.323/2009 dated 23.9.2009, whereby the petitioner's husband Rajaram was ordered to be detained under the Act 14 of 1982, terming him as "Goonda". 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 two adverse cases namely, (i) Vikkiravandi police station Crime No.106 of 2009 for the offences under Sections 302 and 201 of the Indian Penal Code for the occurrence that had taken place on 27.2.2009, (ii) R9 Valasaravakkam police station Crime No.467 of 2009 for the offences under Sections 394(b), 323 and 307 of the Indian Penal code for the occurrence that had taken place on 4.9.2009 and also a ground case in Crime No.470 of 2009 registered by R9 Valasaravakkam police station for the offences under Sections 341, 294(b), 323, 336, 397 and 506(ii) of the Indian Penal Code for the occurrence that had taken place on 6.9.2009, the detaining Authority, on scrutiny of materials, has made the order of detention, after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order. The said order is the subject matter of challenge. 4. Advancing arguments on behalf of the petitioner, learned counsel raised only two points, which, according to him, would be suffice to set aside the order. According to the learned counsel, insofar as Crime No.470 of 2009 was concerned, he was arrested on the very day and he was remanded to judicial custody and insofar as second adverse case in Crime No.467 of 2009 was concerned, a requisition was made to produce him in Court under P.T. warrant, which was made on 10.9.2009 and a copy of the arrest intimation given to father of the detenu, as found in page No.163, shows that both the crime numbers are actually found, but the arrest card as found in page No.159 shows only one crime No,470 of 2009 and thus, if the arrest intimation was actually served on the detenu's father on 6.9.2009, the crime number of 467 of 2009 could not have been mentioned. Under such circumstances, an explanation should have https://hcservices.ecourts.gov.in/hcservices/ been called for by the detaining Authority from the sponsoring Authority, but not done so. 5. Learned counsel added further that insofar as ground is concerned, a bail application was filed before the Court of Sessions, Thiruvallur and the same was dismissed, but the detaining Authority has stated that there was a real possibility of the detenu coming out on bail by filing bail application and thus, the observation of the Authority was actually premature, since the application itself was dismissed before the Court of criminal law. Under the circumstances, it should be added as a ground for setting aside the order. 6. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious considerations on the submissions made. 7. It is not in controversy that an order under challenge came to be passed by the detaining Authority on the recommendations made by the Sponsoring Authority that the detenu is involved in two adverse cases and one ground case. The detenu was arrested on 6.9.2009 in Crime No.470 of 2009 registered by Ro Valasaravakkam police station and he was also remanded to judicial custody on the very day. It is also an admitted position that insofar as adverse case in Crime No.467 of 2009 is concerned, a requisition was made to produce him on P.T. warrant only on 10.9.2009. When the arrest intimation was given to the father of the detenu, as claimed by the detenu, Crime No.467 of 2009 could not have been incorporated, as could be seen from the booklet Nos.163 and 159 respectively. Hence, the detaining Authority should have called for clarification from the sponsoring Authority, but the detaining Authority has not done so. As rightly pointed out by the learned counsel for the petitioner, this ground would be suffice to vitiate the detention order. 8. Insofar as second ground is concerned, the Court is able to see force in the contention of the learned counsel for the petitioner. It is not in controversy that in all the cases, bail application was filed and equally in the ground case also, bail application was filed before the Court of Sessions, Thiruvallur and the same was also dismissed. The observation of the detaining Authority that there is a real possibility of detenu coming out on bail cannot be said to be any basis. The observation of the Detaining authority is not based on any material, much less, cogent material. Under the circumstances, it is a good ground to vitiate the detention order. 9. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the first respondent in Memo No.323/BDFGISSV/2009 dated 23.9.2009. The detenu, namely, https://hcservices.ecourts.gov.in/hcservices/ Rajaram, who is now confined at Central Prison, Puzhal, Chennai 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 ssa. To 1.The Commissioner of Police, The Commiserate of Police, Chennai City, Chennai – 8. 2. The Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department., Fort St.George, Chennai – 9. 3. The Inspector General of Prisons, State of Tamil Nadu, Chennai – 2. 4. The Superintendent, Central Prison, Puzhal, Chennai. (in duplicate communication to detenue) 5. The Joint Secretary to Government, Public (Law & Order) Department, Fort.St.George, Chennai - 9. 6.The Public Prosecutor, High Court, Chennai. + 1 CC to Mr.R.Narayanasamy,Advocate,SR.22750 H.C.P. No.2312 of 2009 MSM(CO) EM/27.4.10 https://hcservices.ecourts.gov.in/hcservices/