IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 30.03.2010 CORAM: THE HON'BLE MR.JUSTICE M. CHOCKALINGAM AND THE HON'BLE MR.JUSTICE C.S. KARNAN HCP. Nos.1809 to 1811 of 2009 Rajamanickam ... Petitioner in HCP No.1809/2009 Mrs. Ellammal ... Petitioner in HCP No.1810/2009 Mrs. Vasugi ... Petitioner in HCP No.1811/2009 Vs. 1.The District Collector and District Magistrate, Kancheepuram District, I/c District Revenue Officer, Kancheepuram. 2. The Secretary to the Government, Government of Tamil Nadu-Home, Prohibition and Excise Department., Fort St.George, Chennai – 9. ... Respondents in all HCPs. Petitions under Article 226 of the Constitution of India, seeking to issue a writ of Habeas Corpus, to call for the records of the first respondent herein in B.D.F.G.I.S.S.V. Nos.57, 56 and 58/2009 dated 7.8.2009 and to set aside the order of detention passed by the first respondent herein dated 7.8.2009 and setting the detenus by name Ega alias Egambaram, son of Rajamanickam, Guna alias Gunasekaran, Son of Namachivayam and Kothandan, son of Ramu at liberty now detained in Central Prison, Cuddalore. For Petitioner : Mr. C.C. Chellappan for Mr. Shankar Kutralingam For Respondents: Mr. V.R. Balasubramanian, Additional Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER (Order of the Court was made by M. CHOCKALINGAM,J) Challenge is made by the father of the detenu in H.C.P. No.1809 of 2009 and wife of the detenus in H.C.P. Nos.1810 and 1811 of 2009 to the orders passed by the first respondent in B.D.F.G.I.S.S.V. Nos.57, 56 and 58/2009 dated 7.8.2009. 2. Affidavits filed in support of the petitions are perused. The Court heard the learned counsel appearing for the petitioners and looked into the materials available on record, in particular, the orders under challenge. 3. It is not in controversy that pursuant to the recommendations made by the sponsoring Authority that the detenu in H.C.P. No.1809 of 2010 is involved in one adverse case viz. Chengalpattu Taluk police station Crime No.189 of 2008 for the offences under Sections 147, 148, 341, 302 read with 34, 149 of the Indian Penal Code and also ground case in Crime No.470 of 2009 registered by Guduvanchery police station for the offences under Sections 147, 148, 324, 302 of the Indian Penal Code read with Sections 3 and 5 of Indian Explosive Substances Act, 1908 and Section 3(i) of TNPPDL Act, the detenu in H.C.P. No.1810 of 2010 is involved in one adverse case viz. Chengalpattu Taluk police station Crime No.189 of 2008 for the offences under Sections 147, 148, 341, 302 read with 34, 149 of the Indian Penal Code and also ground case in Crime No.470 of 2009 registered by Guduvanchery police station for the offences under Sections 147, 148, 324, 302 of the Indian Penal Code read with Sections 3 and 5 of Indian Explosive Substances Act, 1908 and Section 3(i) of TNPPDL Act and the detenu in H.C.P. No.1811 of 2010 is involved in one adverse case viz. Guduvancheri police station Crime No.611 of 2008 for the offences under Sections 147, 148, 341, 294(b), 307, 506(ii) of the Indian Penal Code and Section 3(i) of TNPPDL Act, 1992 and also ground case in Crime No.470 of 2009 registered by Guduvanchery police station for the offences under Sections 147, 148, 324, 302 of the Indian Penal Code read with Sections 3 and 5 of Indian Explosive Substances Act, 1908 and Section 3(i) of TNPPDL Act and on scrutiny of the materials available, the detaining Authority, after recording its subjective satisfaction that the detenus have indulged in activities, which are prejudicial to the maintenance of public order, passed the detention orders under challenge, after terming them as "Goonda" under the Act 14 of 1982. 4. Advancing arguments on behalf of the detenus inter-alia learned counsel raised two points. Firstly, the detaining Authority has observed in his order that if the detenu is released https://hcservices.ecourts.gov.in/hcservices/ on bail by filing a bail application, he is likely to indulge in such activities in future, which are prejudicial to the maintenance of public order. Learned counsel, pointing out to this part of order, submitted that originally the detenus were remanded to judicial custody in connection with Crime No.470 of 2009 in the ground case, after producing them before the Court and remand was also extended then and there. No bail application was filed or pending during the relevant time. 5. Relying on the decision of the Full Bench reported in the case of K. THIRUPATHI v. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, TIRUCHIRAPALLI DISTRICT (2005(4) CTC 497), learned counsel would submit that in the instant case, before recording subjective satisfaction, there must be materials for the detaining Authority to speak out whether there was a real possibility or imminent possibility. In the instant case, he has not whispered anything. The only wording is that the detenu is likely to indulge in such activities, which are prejudicial to the maintenance of public order. 6. Learned counsel added further that there was a delay in the consideration of the representation made by the petitioners. A representation was made by the petitioners on 7.9.2009, but till date, no reply was received in that regard as to the denial or refusal or rejection of the representations. In such circumstances, the detention orders have got to be set aside. 7. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 8. After looking into the materials available on record, the Court is of the considered opinion that both the grounds are available to the petitioners herein. Insofar as first ground is concerned, the order of the Authority reads as follows:- H.C.P. No.1809 of 2009 " 5. I am aware that Thiru. Ega @ Egambaram was surrendered in the above case before Gingee Judicial Magistrate on 6.7.2009 in above murder case and ordered to be remanded to Judicial custody upto 20.07.2009 and lodged at Central Prison, Cuddalore as a remand prisoner. Then the accused was taken for police custody from 09.07.2009 at 3.00 p.m. to 13.07.2009 at 3.00 p.m. for making investigation and interrogation and reproduced before Judicial Magistrate – II, Chengalpattu on 13.07.2009 and relodged at Central Prison, Cuddalore as remand prisoner. https://hcservices.ecourts.gov.in/hcservices/ His remand period has been periodically extended upto 12.08.2009 So far he has not filed any bail petition. If he is released on bail by filing a bail petition he is likely to indulge in such activities in future which will be prejudicial to the maintenance of Public Order. Further the recourse to normal criminal law will not have the desired effect of effectively preventing him from indulging in such activities which are prejudicial to the maintenance of Public Order. Based on the materials placed before me, I am satisfied that the said Thiru. Ega @ Egambaram is a "GOONDA" and that there is a compelling necessity to detain him under the provisions of Section 2(f) of Tamil Nadu Act 14 of 1982 in order to prevent him from indulging in such further activities in future which are prejudicial to the maintenance of Public Order." H.C.P. No.1810 of 2009 " 5. I am aware that Thiru. Guna @ Gunasekaran was surrendered in the above case before Gingee Judicial Magistrate on 6.7.2009 in above murder case and ordered to be remanded to Judicial custody upto 20.07.2009 and lodged at Central Prison, Cuddalore as a remand prisoner. Then the accused was taken for police custody from 09.07.2009 at 3.00 p.m. to 13.07.2009 at 3.00 p.m. for making investigation and interrogation and reproduced before Judicial Magistrate – II, Chengalpattu on 13.07.2009 and relodged at Central Prison, Cuddalore as remand prisoner. His remand period has been periodically extended upto 12.08.2009 So far he has not filed any bail petition. If he is released on bail by filing a bail petition he is likely to indulge in such activities in future which will be prejudicial to the maintenance of Public Order. Further the recourse to normal criminal law will not have the desired effect of effectively preventing him from indulging in such activities which are prejudicial to the maintenance of Public Order. Based on the materials placed before me, I am satisfied that the said Thiru. Guna @ Gunasekaran is a "GOONDA" and that there is a compelling necessity to detain him under the provisions of Section 2(f) of Tamil Nadu Act 14 of 1982 in order to prevent him from indulging in such further activities in future which are https://hcservices.ecourts.gov.in/hcservices/ prejudicial to the maintenance of Public Order." H.C.P. No.1811 of 2009 " 5. I am aware that Thiru. Kothandan was surrendered in the above case before Gingee Judicial Magistrate on 6.7.2009 in above murder case and ordered to be remanded to Judicial custody upto 20.07.2009 and lodged at Central Prison, Cuddalore as a remand prisoner. Then the accused was taken for police custody from 09.07.2009 at 3.00 p.m. to 13.07.2009 at 3.00 p.m. for making investigation and interrogation and reproduced before Judicial Magistrate – II, Chengalpattu on 13.07.2009 and relodged at Central Prison, Cuddalore as remand prisoner. His remand period has been periodically extended upto 12.08.2009 So far he has not filed any bail petition. If he is released on bail by filing a bail petition he is likely to indulge in such activities in future which will be prejudicial to the maintenance of Public Order. Further the recourse to normal criminal law will not have the desired effect of effectively preventing him from indulging in such activities which are prejudicial to the maintenance of Public Order. Based on the materials placed before me, I am satisfied that the said Thiru. Kothandan is a "GOONDA" and that there is a compelling necessity to detain him under the provisions of Section 2 (f) of Tamil Nadu Act 14 of 1982 in order to prevent him from indulging in such further activities in future which are prejudicial to the maintenance of Public Order." 9. From the very reading of this part of the orders, it would be quite clear that the date on which the orders under challenge came to be passed, no bail application was filed or pending before the Criminal Court, but the Authority has stated that the detenus might be released on bail, if bail application is made. When there was an occasion for the Full Bench in the decision in (2005(4) CTC 497) (cited supra) to consider such a situation, in which the Authority came to make an order even without arriving at subjective satisfaction, the Full Bench held as follows:- " Strict insistence of the usage of the word "imminent" is not necessary and the other convincing expressions like "real possibility", or "most likely" can be used by the detaining authority to reflect its satisfaction with regard https://hcservices.ecourts.gov.in/hcservices/ to the immediate release of the detenu on bail." 10. In the instant case, before recording its subjective satisfaction, the Authority has not stated any of these expressions. Apart from that, no material, much less cogent material was available for the Authority to mention so. In such circumstances, the Court is of the considered opinion that it was only an impression in the mind of the Authority, which would not be suffice to pass the detention order. On this ground, the detention orders under challenge have got to be set aside. 11. Insofar as second ground is concerned, it is an admitted position that there was a representation made on 7.9.2009, but till date there is nothing to indicate that it was either considered or rejected. No material is placed before this Court to show that any rejection order was actually served upon the detenus, which has to be taken as not considered properly or warranted in law. On these grounds, the detention orders under challenge are liable to be set aside. 12. Accordingly, the Habeas Corpus Petitions are allowed, setting aside the detention orders passed by the first respondent in B.D.F.G.I.S.S.V. Nos.57, 56 and 58/2009 dated 7.8.2009. The detenus viz. Ega alias Egambaram, Guna alias Gunasekaran and Kothandan, who are now detained in Central Prison, Cuddalore, are directed to be set at liberty forthwith unless their presence is required in connection with any other case. ssa. Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The District Collector and District Magistrate, Kancheepuram District, I/c District Revenue Officer, Kancheepuram. 2. The Secretary to the Government, Government of Tamil Nadu-Home, Prohibition and Excise Department., Fort St.George, Chennai – 9. https://hcservices.ecourts.gov.in/hcservices/ 3.The Superintendent, Central Prison, Cuddalore. 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 + 3 ccs to Mr.V.R.Senkara Kutralingam, Advocate SR No.20969 RJ(CO) SR/15.4.2010 H.C.P. Nos.1809 to 1811 of 2009 https://hcservices.ecourts.gov.in/hcservices/