IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.1.2010 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN and THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR H.C.P. No. 1748 of 2009 Kattaiah @ Senthil @ Senthil Kumar .. Petitioner Vs. 1. State of Tamil Nadu Rep. by Secretary to Government Home, Prohibition and Excise Department Fort St. George Chennai 600 009. 2. The Commissioner of Police Chennai City Egmore Chennai 600 008. .. Respondents * * * Prayer : Petition under Article 226 of the Constitution of India, praying for issuance of Writ of Habeas Corpus. For Petitioner :: Mr. C.M.Gunasekaran For Respondents :: Mr. M.Babu Muthu Meeran, Addl.P.P. O R D E R (Order of the Court was made by C. NAGAPPAN, J.) The petitioner, who is the detenu, has challenged the Order of detention, dated 16.9.2009, bearing No.304/2009 passed by the second respondent https://hcservices.ecourts.gov.in/hcservices/ 2. On the recommendation made by the Sponsoring Authority citing four adverse cases in Crime No.523/1999, Dindigul Town North Police Station; Crime No.1222/1999, Dindigul Town North Police Station; Crime No.1001/2004 Dindigul Taluk Police Station; and Crime No.352/2005, Dindigul Town North Police Station and ground case in Crime No.301/2009, R.7 K.K.Nagar Police Station, and after looking into the materials available, the second respondent, the Commissioner of Police, Chennai Police, formed an opinion that the detenu was to be termed as GOONDA since his activities are prejudicial to the maintenance of public order as contemplated under Section 2(f) of the Tamil Nadu Act 14 of 1982 and with a view to prevent him from indulging in such activities in future, the Order of detention, dated 16.9.2009, was passed. The said Order is under challenge in this petition. 3. Mr. C.M.Gunasekaran, learned counsel appearing for the petitioner, while assailing the Order, submits that the Detaining Authority has not considered the imminent possibility of the detenu coming out on bail in two adverse cases in which he was in judicial remand on the date of passing of the detention order and the ground case alone was considered and there is no proper application of mind by the Detaining Authority on this aspect and it vitiates the detention order. The learned counsel for the petitioner further submits that the detenu has not moved any bail application in the ground case and still, it is observed in the grounds of detention that there is real possibility of the detenu coming out on bail by filing bail application and this shows non- application of mind on the part of the Detaining Authority while passing the impugned detention order and hence, it is liable to be quashed. 4. Per contra, Mr. M.Babu Muthu Meeran, learned Additional Public Prosecutor, submits that the detenu surrendered in the ground case and later, he was produced on P.T. Warrant in both the adverse cases and the Detaining Authority has considered the real possibility of the detenu coming out on bail in the ground case and hence, the Order of detention is sustainable. 5. In the Grounds of detention it is stated that the detenu has come to adverse notice in the case in Crime No.523/1999, Dindigul Town North Police Station; Crime No.1222/1999, Dindigul Town North Police Station; Crime No.1001/2004 Dindigul Taluk Police Station; and Crime No.352/2005, Dindigul Town North Police Station. The final report in the first adverse case in Crime No.523/1999 was filed and the case is pending in P.R.C.No.31/2000. In page 14 of the Paper Book, xerox https://hcservices.ecourts.gov.in/hcservices/ copy of the Diary Extract, maintained by the Investigation Officer, in PRC No.31/2000 in Crime No.523/1999, is found. It is mentioned in the Diary Extract that the detenu against whom NBW was pending in the case, was produced on P.T.Warrant before the Judicial Magistrate II, Dindigul, on 21.8.2009 and the judicial remand of the detenu in the case has been extended till 4.9.2009. The final report in the second adverse case in Crime No.1222/99 was filed and the case is pending in PRC No.32/2000. In page 27 of the Paper Book, xerox copy of the Diary Extract, maintained by the Investigation Officer in PRC No.32/2000 in Crime No.1222/99, is found, in which, it is stated that the detenu against whom NBW was pending in the case was produced from Puzhal Prison, Madras, on P.T. Warrant before the Judicial Magistrate II, Dindigul, on 27.8.2009 and the judicial remand of the detenu has been extended till 4.9.2009 in the case. 6. The Order of detention was passed on 16.9.2009 and on that day, the detenu was in judicial remand in the ground case in Crime No.301/2009 and also in the adverse cases in PRC Nos.31/2000 and 32/2000. The grounds of detention do not mention about the judicial custody of the detenu in the adverse cases in PRC Nos.31/2000 and 32/2000 and it mentions only the judicial remand in the ground case in Crime No.301 of 2009. The Detaining Authority has not applied its mind as to whether the detenu was in judicial custody in the adverse cases and the grounds of detention do not reflect application of mind on this aspect. When the detenu is in judicial remand in three cases, the Detaining Authority has to consider the imminent possibility of his coming out on bail in all the three cases. Whereas in the present case, the Detaining Authority has recorded its satisfaction only in the ground case in Crime No.301 of 2009 and the judicial remand of the detenu in the other two adverse cases has not been adverted to at all and has been completely left out. The law is well settled that there must be cogent material before the Detaining Authority on the basis of which it could be satisfied that the detenu was likely to be released on bail. Reliance was placed by the learned counsel for the petitioner on the decision of this Court in RAMESH @ KOTHALI RAMESH v.. STATE, REP. BY ITS SECRETARY TO GOVERNMENT, PROHIBITION AND EXCISE DEPARTMENT, FORT ST. GEORGE, CHENNAI 9 AND ANOTHER [2007-2-L.W. (Crl.) 669] in which the Division Bench considered a similar case, where the grounds of detention do not reflect as to whether the detenu was in judicial remand in the adverse case also and it was concluded that there was non-application of mind on the part of the Detaining Authority, which vitiates the Order of detention. In the present case also, the Detaining Authority has not applied its mind as to whether the detenu was in judicial remand in two adverse cases and it took into account the judicial custody of the detenu in the https://hcservices.ecourts.gov.in/hcservices/ ground case alone, though relied on the adverse cases for passing the detention order. There is no application of mind by the Detaining Authority with regard to the possibility of the detenu coming out on bail in the adverse cases and thus, the detention order is vitiated by non-application of mind by the Detaining Authority and it is liable to be quashed on this ground alone. 7. The Habeas Corpus Petition is allowed and the impugned detention order is set aside. The detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pb To 1. The Secretary to Government Home, Prohibition and Excise Department Fort St. George,Chennai 600 009. 2. The Commissioner of Police Chennai City, Egmore, Chennai 600 008. 3.The Superintendent, Central Prison, Puzhal, Chennai. 4.The Joint Secretary to Govt. (Law & Order) Department, Fort St.George, Chennai-9. 5. The Public Prosecutor, High Court, Madras. 6. The Section Officer, Criminal Section, High Court, Madras 104. TEJ(CO) km/18.1. HCP.No. 1748 of 2009 https://hcservices.ecourts.gov.in/hcservices/