IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 20.1.2010 C O R A M The Honourable Mr. Justice C.NAGAPPAN and The Honourable Mr. Justice P.R.SHIVAKUMAR Habeas Corpus Petition Nos.1968, 1969, 1970, 1971 and 2021 of 2009 HCP.No.1968/2009 Mr. Markandan .. Petitioner -Vs- 1. The State of Tamilnadu, represented by its Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-9. 2. The District Magistrate and District Collector, Tiruvallur District, Tiruvallur. .. Respondents HCP.No.1969/2009 Mrs. Dhanalakshmi .. Petitioner -Vs- 1. The State of Tamilnadu, represented by its Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-9. 2. The District Magistrate and District Collector, Tiruvallur District, Tiruvallur. .. Respondents HCP.No.1970/2009 Mrs. Vani .. Petitioner -Vs- https://hcservices.ecourts.gov.in/hcservices/ 1. The State of Tamilnadu, represented by its Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-9. 2. The District Magistrate and District Collector, Tiruvallur District, Tiruvallur. .. Respondents HCP.No.1971/2009 Mr. Gunasekaran .. Petitioner -Vs- 1. The State of Tamilnadu, represented by its Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-9. 2. The District Magistrate and District Collector, Tiruvallur District, Tiruvallur. .. Respondents HCP.No.2021/2009 Mrs. Dharani W/o.Jaishankar .. Petitioner -Vs- 1. The State of Tamilnadu, represented by its Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-9. 2. The District Magistrate and District Collector, Tiruvallur District, Tiruvallur. 3. The Superintendent Central Prison, Chennai-66 .. Respondents https://hcservices.ecourts.gov.in/hcservices/ Prayer in HCP.No.1968/2009: Petition filed to issue a Writ of Habeas Corpus calling for the records pertaining to the detenu Mr.Madhan Mohan @ Madhu, s/o. Markandan, who is detained under Tamil Nadu Act 14 of 1982 as Goonda at Central Prison, Puzhal, Chennai, by the second respondent herein vide his order in B.D.F.G.I.S.S.V.No.70/2009 dated 24.10.2009 on the file of the second respondent herein and to quash the same and direct the respondents to produce the body of the detenu Mr.Madhan Mohan @ Madhu, s/o. Markandan, aged about 40 years and set him at liberty. Prayer in HCP.No.1969/2009: Petition filed to issue a Writ of Habeas Corpus calling for the records pertaining to the detenu Mr.Chandra Babu @ Babu, s/o. Mr.Duraiswamy Reddy, who is detained under Tamil Nadu Act 14 of 1982 as Goonda at Central Prison, Puzhal, Chennai, by the second respondent vide his order in B.D.F.G.I.S.S.V.No.72/2009 dated 24.10.2009 on the file of the second respondent herein and to quash the same and direct the respondents herein to produce the body of the detenu Mr.Chandra Babu @ Babu, s/o.Mr.Duraiswamy Reddy, aged about 29 years and set him at liberty. Prayer in HCP.No.1970/2009: Petition filed to issue a Writ of Habeas Corpus calling for the records pertaining to the detenu Mr.Ananda Kumar, s/o. Mr.Kuppiah Chetty, who is detained under Tamil Nadu Act 14 of 1982 as Goonda at Central Prison, Puzhal, Chennai, by the second respondent vide his order in B.D.F.G.I.S.S.V.No.68/2009 dated 24.10.2009 on the file of the second respondent herein and to quash the same and direct the respondents herein to produce the body of the detenu Mr.Ananda Kumar, s/o. Mr.Kuppiah Chetty, aged about 40 years and set him at liberty. Prayer in HCP.No.1971/2009: Petition filed to issue a Writ of Habeas Corpus calling for records pertaining to the detenu Mr.Babu @ Jagadeesh, s/o. Mr.Kathirvel Reddy, who is detained under Tamil Nadu Act 14 of 1982 as Goonda at Central Prison, Puzhal, Chennai, by the second respondent vide his order in B.D.F.G.I.S.S.V.No.71/2009 dated 24.10.2009 on the file of the second respondent herein and to quash the same and direct the respondents herein to produce the body of the detenu Mr.Babu @ Jagadeesh, s/o. Mr.Kathirvel Reddy, aged about 28 years and set him at liberty. Prayer in HCP.No.2021/2009: Petition filed to issue a Writ of Habeas Corpus calling for the records relating to the second respondent, pertaining to the detention order made in B.D.F.G.I.S.S.V.No.69/2009 dated 24.10.2009 in detaining the detenu under Tamil Nadu Act 14 of 1982 as "Goonda" and quash the same and direct the respondents to produce the detenu, namely, Thiru.Jaishankar, s/o. Annamalai Chettiar, aged about 44 years, who is detained at Central Prison, Puzhal, Chennai before this Court and set him at liberty. For petitioner in HCP.No.1968, of 2009 : Mr.Abudu Kumar Rajarathinam for M/s.M.Sathish Kumar https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in HCP.No.1969/2009 : Mr.Abudu Kumar Rajarathinam for M/s.R.Ayyappan For Petitioner in HCP.No.1970/2009 : Mr.Abudu Kumar Rajarathinam for M/s.P. Ravi Kumar For Petitioner in HCP.No.1971/2009 : Mr.Abudu Kumar Rajarathinam for M/s.G.Vijaya Kumar For Petitioner in HCP.No.2021/2009 : Mr.R. Gandhi Senior Counsel for M/s.D.Veerasekaran For respondents : Mr.M.Babu Muthu Meeran Additional Public Prosecutor COMMON ORDER (Order of the Court was made by C.NAGAPPAN, J.) All the five petitions in H.C.P.Nos.1968, 1969, 1970, 1971 and 2021 of 2009 filed on behalf of five detenus were heard together and are being disposed of by this Common Order as the basic allegations are common. 2. The orders of preventive detention have been passed in respect of each detenu under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest offenders, Goondas, Immoral Traffic offenders, Sand offenders, Slum Grabbers and Video pirates Act 1982 (Tamil Nadu Act 14 of 1982). 3. In the grounds of detention, it is stated that Anandakumar, the detenu in HCP.No.1970/2009, stored the manufactured crackers on the eve of Deepavali festival in the building of Jaishankar, the detenu in HCP.No.2021/2009, in Door No.94, Pallipet – Sholingur Main Road and doing cracker business without any valid licence for possession and sale on 16.10.2009 and at 6.30 pm on the same day, while the business was actively going on in the sale of crackers, suddenly fire broke out and crackers started to blast and people inside the building who were purchasing crackers were unable to come out of the building and the emission of smoke and fire engulfed the entire area and the Policemen and the Fire Service personnel extinguished the fire and collected 32 bodies with 100% burns and the crime has occurred only because there is neither proper licence nor safety measures were followed by the owner of the building Jaishankar, the detenu in HCP.No.2021/2009, the tenant of the godown viz. Anandakumar, the detenu in HCP.No.1970/2009 and the workers, namely, Madhanmohan alias Madhu, the detenu in HCP.No.1968/2009, Babu alias Jagadeesh, the detenu in HCP.No.1971/2009 and Chandra Babu alias Babu, the detenu in HCP.No.1969/2009 and all are responsible for the cause https://hcservices.ecourts.gov.in/hcservices/ of death and on the written complaint by Village Administrative Officer Syed Babu, the Inspector of Police, R.K. Pet Circle, Pallipet Police Station registered a case in Crime No.427/2009 under Sections 286, 337, 338, 304 IPC read with Section 9(B)(1)(b) of Explosive Act and Sections 3 and 4 of Explosive Substance Act and the detenus were remanded to judicial custody in the said case. 4. On the basis of such basic allegation, the Detaining Authority has come to the conclusion that the detenus have acted in a manner prejudicial to the maintenance of public order. For better appreciation, the relevant paragraph No.4 in the grounds of detention in respect of the detenu Anandakumar is extracted below:- "4) The Crime No.427/2009 of Pallipet Police Station registered for the Offences under Section 286, 337, 338, 304 IPC read with Section 9(B)(1)(b) Explosive Act and 3 & 4 of Explosive Substance Act is an offence affecting the human body, offence against property, offence of criminal intimidation in chapters XIV and XVI. Hence I am satisfied that Anandakumar is habitually committing crime and is also acting in a manner prejudicial to the maintenance of public order and as such he is a "Goonda" as contemplated under Section 2(f) of the Tamil Nadu Act 14 of 1982. By committing the above described grave crime in the public place, he has created a feeling of insecurity in the minds of the people of that area and thereby acted in a manner prejudicial to the maintenance of public order." 5. Mr.Abudu Kumar Rajarathinam, learned counsel appearing for the petitioners in H.C.P.Nos.1968 to 1971 of 2009, assailed the detention orders mainly on the following grounds: (1) The orders of detention are based on a solitary incident and there is no material to show that the detenus were habitually committing crime and they cannot be labelled as "Goondas" under Section 2(f) of the Tamil Nadu Act 14 of 1982 and therefore the orders of detention cannot be maintained. (2) The subjective satisfaction of the Detaining Authority that there is a real possibility of the detenus coming out on bail, is not based on any cogent materials, more particularly, in the light of the fact that the bail applications filed by the detenus came to be dismissed by the Sessions Court, Thiruvallur on 23.10.2009, a day prior to passing of the detention orders and the mere ipse dixit of the detaining authority is not sufficient to sustain the orders of detention. https://hcservices.ecourts.gov.in/hcservices/ 6. Mr.R. Gandhi, learned Senior Counsel appearing for the petitioner in HCP.No.2021 of 2009, raised the above grounds and in addition, submits that the detenu in HCP.No.2021 of 2009 viz. Jaishankar, is the owner of the building and no overt act has been attributed to him in the occurrence and there is no material to show that he had acted in a manner prejudicial to the maintenance of public order and the subjective satisfaction of the Detaining Authority in so far as he is concerned, is not based on cogent material and hence the detention order pertaining to the detenu Jaishankar is vitiated and further the wife of the detenu Jaishankar, namely, Mrs.Dharani sent representation, dated 8.11.2009 to the State Government seeking for certain particulars pertaining to the judicial remand of the detenu, communication between the Authorities pertaining to detention and the said representation dated 8.11.2009 was received by the State Government on 10.11.2009 and there was unreasonable delay in considering the same and it came to be rejected only on 11.12.2009 and there is no explanation offered for the inordinate delay in the counter filed in the case and the rejection is based on improper consideration and the detention order is vitiated by non- application of mind. 7. The main contention of both the learned counsel appearing for the petitioners is that the detention orders are based on a single incident leading to the registration of ground case and there is no reference to any other crime and in the absence of materials to show that the detenus were habitually committing offences they cannot be termed as "Goondas" under Section 2 (f) of the Act and detention orders have been passed by the Authority without application of mind regarding provisions of the Act and they have to be quashed. Reliance is placed on the decision of the Supreme Court in R. KALAVATHI V. STATE OF T.N. AND OTHERS (2006) 3 Supreme Court Cases (Cri) 11) and other decisions of this Court following the same. The Supreme Court, in the said decision, considered the expression "habitually" and laid down that from one single transaction, a habit cannot be attributed to a person and the order of detention cannot be maintained if it only refers to one act. For better appreciation, the relevant portion of the decision is extracted below:- "9. A bare reading of the provision makes the position clear that in order to attract action in terms of Section 3(1) of the Act, the detenu must be one who is a "goonda" as defined under Section 2(f) of the Act. Though in other preventive detention laws, even a single act which has the propensity of affecting the even tempo of life and public tranquillity would be sufficient for detention, being prejudicial to maintenance of public order. For the purpose of the Act the detenu has to be a "goonda" as defined under Section 2(f) of the Act. ..... ....... https://hcservices.ecourts.gov.in/hcservices/ 13. The expression "habitually" is very significant. A person is said to be a habitual criminal who by force of habit or inward disposition is accustomed to commit crimes. It implies commission of such crimes repeatedly or persistently and prima facie there should be continuity in the commission of those offences. (See Ayub v. S.N.Sinha). 14. From one single transaction though consisting of several acts, a habit cannot be attributed to a person. 15. Judged in the background of the legal position delineated above, the order of detention cannot be maintained because it only refers to one act. There is also no material to justify the conclusion that the accused was habitually committing crime. There is no reference to any other crime. Therefore, the order of detention cannot be maintained. The High Court has not considered this aspect in the proper perspective. The order of detention in respect of the detenu which was passed by the Commissioner of Police, Chennai on 1-8-2005 is quashed." The dictum of the Apex Court in the said decision was followed subsequently by Division Bench of this Court in the decisions in ANJALI AND OTHERS V. SECRETARY TO THE GOVERNMENT, PROHIBITION AND EXCISE DEPARTMENT AND ANOTHER (2007) 1 MLJ (Cri) 667); MANNAR @ EZHILARASAN @ SURESH @ ARIF V. THE STATE OF TAMIL NADU REP. BY ITS SECRETARY TO GOVERNMENT, PROHIBITION AND EXCISE DEPARTMENT AND ANOTHER (2008-1-L.W. (Crl.) 152) and N.KANCHANA V. STATE REP. BY INSPECTOR OF POLICE C-1, CHENNAI AND OTHERS (2007) 2 MLJ (Crl) 1331). 8. The Detaining Authority, before passing the order of detention, is required to be satisfied that the person is 'Goonda' as defined under Section 2(f) of the Act and thereafter only, it can pass an order to prevent such a person acting in any manner prejudicial to the maintenance of public order. In the present case, the Detaining Authority neither relied on nor referred to the past activities of the detenus and merely referred to the ground case and jumped to the conclusion that the detenus are 'Goondas'. A person cannot be detained as 'Goonda' unless there is an allegation of his involvement in more than one crime and the expression 'habitually' implies commission of such crimes repeatedly or persistently. The ratio of the decision in KALAVATHI'S CASE (cited supra) still holds the field and it is squarely applicable to the facts of the present case and on applying the same, the orders of detention cannot be maintained, since they only refer to one act and are liable to be quashed. 9. The next ground urged by the learned counsel for the petitioners is that there are no cogent materials before the https://hcservices.ecourts.gov.in/hcservices/ Detaining Authority on the basis of which it could arrive at the subjective satisfaction that there is real possibility of the detenus coming out on bail and it is only the ipse dixit of the Detaining Authority unsupported by materials and hence the detention orders are liable to be set aside. Reliance is placed on the decision of the Supreme Court in T.V.SARAVANAN alias S.A.R.PRASANNA VENKATACHARIAR CHATURVEDI V. STATE, THROUGH SECRETARY AND ANOTHER (2006) 1 Supreme Court Cases (Cri) 539). 10. Per contra, Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor, relying on the decision in SENTHAMILSELVI V. STATE OF T.N. AND ANOTHER (2006) 3 Supreme Court Cases (Cri) 50), would contend that even if there is no application filed by the detenus for being released on bail, it is open to the Detaining Authority to reach the subjective satisfaction if in similar cases bails are granted by Courts and hence the subjective satisfaction reached by the Detaining Authority in the present cases is based on materials. 11. Admittedly, all the five detenus filed bail applications and all the bail applications came to be dismissed on 23.10.2009. The detention orders were passed on the next day i.e., on 24.10.2009. It is pertinent to note that the Supreme Court in SENTHAMILSELVI'S CASE (referred to above), has observed that whether prayer for bail would be accepted depends on circumstances of each case and no hard and fast rule can be applied and 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 and the said conclusion cannot be ipse dixit of the Detaining Authority and must be on the basis of the materials before it. As a matter of fact, in that case, the Detaining Authority had come to the conclusion that in similar cases, orders granting bails are passed by various Courts and the Supreme Court observed that the appellant therein has not disputed the correctness of such statement. In other words, the appellant therein had not disputed the correctness of the statement that in similar cases bail orders are granted. 12. The factual matrix is different in the present case and the bail applications stood rejected on 23.10.2009 and on the very next day, there was no material to apprehend that the detenus were likely to move further bail applications or there was an imminent possibility of bail being granted for such grave offences. In this context, the relevant observations of the Supreme Court in the decision in T.V.SARAVANAN'S CASE (cited supra) assumes significance and it is extracted below:- " 14. .... The bail applications moved by the appellant had been rejected by the Courts and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. https://hcservices.ecourts.gov.in/hcservices/ The "imminent possibility" of the appellant coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenu was likely to be released on bail." In the absence of any cogent material placed before the Detaining Authority, the subjective satisfaction that the detenus were likely to be released on bail reflected in the present detention orders, appears to be mere ipse dixit of the Detaining Authority unsupported by any material and the orders of detention are not sustainable on this ground also. 13. The contention of the learned Senior Counsel appearing for the petitioner in H.C.P.No.2021/2009 is that the detenu Jaishankar was only landlord of the building in which the occurrence took place and he has rented it out and there is no overt act attributed to him in the occurrence and there is no material before the Detaining Authority to hold that he was acting in a manner prejudicial to the maintenance of public order. In the paper book in page No.83, copy of the lease deed of the Building for the period from 17.9.2008 to 17.12.2010 entered between the detenu Jaishankar and Mrs. Vani, wife of the detenu Ananda Kumar, is found. The learned Senior Counsel pointed out a relevant clause in the deed stating that the tenant has to obtain necessary licence. There is some substance in the contention raised by the learned Senior Counsel but, having regard to our conclusion reached above, there is no need to dilate further on this. 14. The other submission of the learned Senior Counsel is that the wife of the detenu Jaishankar viz. Mrs.Dharani sent representation dated 8.11.2009 to the State Government seeking for particulars of the remand of the detenu Jaishankar and the communication of the Authorities pertaining to the detention and there was inordinate delay in considering the representation and rejection has been made on 11.12.2009 without properly considering the requests made in the representation and there was non- consideration on the part of the Detaining Authority which vitiates the order of detention. The learned Additional Public Prosecutor submits that the State Government considered the representation dated 8.11.2009 and rejected the same by order dated 11.12.2009 and though it is mentioned in the order that the representation is undated, in the bracket, it has been stated that the representation was received on 10.11.2009 and hence it pertains only to the representation dated 8.11.2009. In the rejection order dated 11.12.2009, there is no proper consideration of the requests made in the representation seeking for copies of documents and particulars. Further, though the representation was received on 10.11.2009, it was considered only on 11.12.2009 i.e., nearly after a month and there is no explanation offered by the Detaining Authority for the said delay. In such circumstances, the submission of the learned Senior Counsel that there was inordinate delay in the disposal https://hcservices.ecourts.gov.in/hcservices/ of the representation and the Detaining Authority has not bestowed proper attention to the requests made in the representation and the rejection was made in a casual manner and that would render the order of detention of Jaishankar invalid in law is well founded and on this ground also it is vitiated. For all the reasons stated above, we hold that the detention orders dated 24.10.2009 passed in all the five cases are liable to be set aside. 15. In the result, all the five Habeas Corpus Petitions are allowed and the impugned orders of detention dated 24.10.2009 are set aside. The detenus are directed to be set at liberty forthwith unless their custody is required in connection with any other case. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vks Copy to:- 1. The Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai-9. 2. The District Magistrate and District Collector, Tiruvallur District, Tiruvallur. 3. The Superintendent of Prisons, Central Prison, Puzhal, Chennai-600 066. 4. The Public Prosecutor, High Court, Madras. 5. The Joint Secretary Public (Law and order) Department Fort St. George, Chennai 1 cc to Mr.D. Veerasekaran, Advocate, SR. 3403 1 cc to MR.M. Sathish Kumar, Advocate, SR. 3954 HCP.Nos.1968, 1969, 1970, 1971 and 2021 of 2009 TRM (CO) kk 3/2 https://hcservices.ecourts.gov.in/hcservices/