IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.08.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN H.C.P.No.779 of 2010 R.Guna .. Petitioner Vs 1. The State of Tamil Nadu rep. By its Secretary to Government Home, Prohibition and Excise Department Fort St.George Chennai 9. 2. The Commissioner of Police Chennai Police, Egmore, 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 entire records pertaining to the order of detention passed by the 2nd respondent in his proceedings in Memo No.206/BDFGISSV/2010 dated 12.04.2010, quash the same and direct the respondents to produce the detenu R.Rajesh, S/o Ravi now confined in Central Prison, Puzhal, Chennai. For Petitioner : Mr.Sathish Rajan For Respondents : Mr.Balu Muthu Meeran, Additional Public Prosecutor ORDER (Order of the Court was made by M.CHOCKALINGAM, J.) This petition is brought forth by the mother of the petitioner challenging an order of the second respondent in Memo No.206/2010 dated 12.04.2010, whereby the detenu was ordered to be detained as a Goonda under the provisions of Act 14 of 1982. https://hcservices.ecourts.gov.in/hcservices/ 2.The affidavit in support of the petition and the grounds of detention are looked into. The Court heard the learned Counsel on either side. 3.Pursuant to the recommendations made by the sponsoring authority that the detenu is involved in seven adverse cases namely (1) K 6 T.P.Chatram Police Station, Cr.No.748/2008 under section 379 IPC (2) G5 Secretariat Colony Police Station, Cr.No.901/2008 under section 379 IPC (3) G5 Secretariat Colony Police Station, Cr.No.931/2008 under section 379 IPC (4) G1 Vepery Police Station Cr.No.1029/2008 under section 379 IPC (5) F5 Choolaimedu Police Station, Cr.No.1467/2009 under section 302 IPC (6) F5 Choolaimedu Police Station, Cr.No.1502/2009 under sections 341, 336, 384, 427, 397 and 506(ii) IPC and (7) F5 Choolaimedu Police Station, Cr.No.527/2010 under sections 341, 452, 326, 307 and 506(ii) IPC and a ground case registered by F5 Choolaimedu Police station Crime No. 675/2010 under sections 341, 323, 336, 427, 397, 307 and 506(2) I.P.C. for an occurrence that took place on 05.04.2010, and the detenu was arrested on 06.04.2010, the detaining authority after scrutiny of the materials placed, was of the opinion that the detenu should be detained under the said Act since his activities were prejudicial to the maintenance of public order, and hence passed the order which is the subject matter of challenge before this Court. 4. The learned counsel at the time of advancing the arguments brought to the notice of this Court that the detenu has actually moved bail applications in Crime No.527 of 2010, one of the adverse case and also in Crime No.675 of 2010, the ground case and both these applications for bail were pending before the XVII Metropolitan Magistrate and also Sessions Division respectively. The authority has stated that he would indulge in such prejudicial activities in future. But the authority has not even recorded whether there was any real possibility of his coming out on bail. The learned counsel would further add that in the absence of the detenu coming out on bail, he could not indulge in such future activities and thus the authority has not applied his mind before recording the subjective satisfaction. Added further the learned counsel the authority has also observed that in similar cases, bails were granted. But no materials in that regard was placed before the detaining authority. Added further, a representation was also made on 26.04.2010, but it was actually disposed of only on 11.06.2010 and thus there was an inordinate delay in disposal of the representation and no explanation is forthcoming for the delay in between these two days. 5. The Court heard the learned Additional Public Prosecutor on the above contention. https://hcservices.ecourts.gov.in/hcservices/ 6. It is not in controversy that pursuant to the recommendations made by the sponsoring authority, an order came to be passed by the detaining authority recording its subjective satisfaction. It is pertinent to point out that in a given case like this, before recording the subjective satisfaction, the authority must have sufficient materials and in the instant case, it is highly doubtful whether the authority had applied his mind at all. 7. Paragraph 4 of the order reads as follows:- "4. I am aware that Thiru.Rajesh is in remand in F5 Choolaimedu Police Station Crime Nos.527/2010 and 675/2010 and he has moved a bail application for F5 Choolaimedu Police Station Crime Nos.527/2010 before the 17th Metropolitan Magistrate Court, Saidapet, Chennai and the same is pending. He has also moved another bail application for F5 Choolaimedu Police Station Cr.No.675/2010 before the Principal Sessions Court, Chennai in Crl.MP.No.3433/2010 and the same is pending. In a case registered under Sections 341 and 307 IPC at E-2 Royapettah Police Station Cr.No.382/2009, bail was granted in Crl.MP.No.5266/2009 by the Court of Principal Sessions, Chennai within 21 days. Similarly, in a similar case registered in R6 Kumaran Nagar Police Station Cr.No.427/2009 under Section 397 r/w 326 IPC bail was granted by the Court of Principal Sessions in Crl.MP.No.3990/2009. Hence, it is very likely of his coming out on bail in the above cases since in similar cases bails were granted by the appropriate Court after a lapse of time. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of public order. Further the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of public order. On the materials placed before me, I am fully satisfied that the said Thiru.Rajesh is also a Goonda and that there is a compelling necessity to detain him in order to prevent him from indulging in such further activities in future which are prejudicial to the maintenance of public order under the provisions of the https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Act 14 of 1982". 8. From the very reading of the above paragraph, would clearly indicate that the authority has not even mentioned whether there is real possibility or imminent possibility of the detneu coming out on bail. As rightly pointed out by the learned counsel for the petitioner, if he did not come out on bail, there is no question of indulging in any such activities in future would arise. In such circumstances, non mentioning of the real possibility of the detenu coming out on bail would clearly indicate that the authority has not applied his mind. In the order under challenge without application of mind the authority has observed that he would indulge in further activities in future. Apart from that though it was observed by the authority that in similar cases bails were granted, no materials were placed by the Sponsoring authority before the detaining authority. As rightly pointed out by the learned counsel for the petitioner, two representations were made, one on 26.04.2010 and the other on 20.05.2010, but it was disposed of only on 11.06.2010, but, no explanation is forthcoming for the delay caused. Under such circumstances, prejudice would be caused to the detenu. On all the above grounds, the detention order has got to be necessarily set aside. 9. In the result, this habeas corpus petition is allowed setting aside the order of 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. rg Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To: 1.The Secretary to Government Home, Prohibition and Excise Department Fort.St.George Chennai 9. 2. The Commissioner of Police Chennai Police, Egmore, Chennai-8 https://hcservices.ecourts.gov.in/hcservices/ 3.The Superintendent, Central Prison, Puzhal, Chennai. 4.The Joint Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St George, Chennai 9. 5.The Public Prosecutor, High Court, Madras + 1 cc to Mr. S. Sathish Rajan, Advocate SR No.63624 RSM(CO) SR/6.9.2010 HCP No.779 of 2010 https://hcservices.ecourts.gov.in/hcservices/