1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23.03.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Habeas Corpus Petition(MD)No.49 of 2011 Pragathambal .. Petitioner Vs. 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2.The Commissioner of Police, Tiruchirappalli City, Tiruchirappalli. .. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Habeas Corpus calling for the entire records relating to the detention of the petitioner's son namely Karthick @ Karthikeyan, S/o.Jothivel, under Act 14/82 under detention order in C.P.O./T.C./D.O.No.33/2010 dated 28.04.2010 on the file of the second respondent therein and quash or set aside the same as illegal and consequently direct the respondents herein to produce the body and person of the said detenu, now confined at Central Prison, Trichy before this Court and thereafter set him at liberty. For Petitioner : Mr.R.Sundar For Respondents : Mr.M.Daniel Manoharan, Addl.Public Prosecutor O R D E R (Order of the Court was made by G.M.AKBAR ALI, J.) Challenge is made to the order of detention passed by the second respondent in his Proceedings C.P.O./T.C./D.O.No.33/2010 dated 28.04.2010 whereby the petitioner's son by name Karthick @ Karthikeyan was ordered to be detained under the provisions of 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 No.14/1982) branding him as a "GOONDA". 2.Learned counsel for the petitioner has submitted that the order of detention is vitiated on the ground that there was non-application of mind on the part of the detaining authority while considering the real https://hcservices.ecourts.gov.in/hcservices/ 2 possibility of the detenu coming out on bail while passing the order of detention. He relied on the judgments of this Court in the case of S.Andal v. District Magistrate and District Collector [(2008) 3 MLJ (Crl) 144], and in the case of A.Murugesan vs. Secretary to Government, Food, Co-Operation and Consumer Protection Department, Chennai - 600 009 and others [(2010) 1 MLJ 950] in support of his contention. 3.We have heard the learned counsel appearing for the petitioner and also the learned Additional Public Prosecutor appearing for the respondents and perused the materials available on record. 4.In paragraph-5 of the detention order it is stated by the detaining authority that the detenu is in remand in the ground case as well as in the second adverse case and he has filed bail applications in both these cases and the same are pending. Thereafter, the detaining authority came to the conclusion that he would very likely be released on bail in the above two cases. From this, it is clear that the detaining authority has passed the order of detention only on presumptions, which amounts to non-application of mind. 5.In the judgment reported in (2008) 3 MLJ (Crl) 144, the Division Bench of this Court has held as under:- "Where a bail application filed by the detenue was pending before the Court and the Detaining Authority coming to the conclusion that there was a real possibility of the detenue coming out on bail, even prior to the passing of an order on bail application, held the detention order was passed without proper application of mind, rendering it vitiated.” 6. In the judgment reported in (2010) 1 MLJ 950 supra, it has been held as under:- "11. Apart from the above, in the instant case, it is an admitted position that he has not made any bail application before any Court of criminal law in Crime No.298 of 2009 and the same is also recorded by the detaining authority. But, at the same time, the authority would further add that bail was likely to be granted, and if he is let at large, his activities would be prejudicial to the public distribution system. While not even a bail application was filed before a Court of criminal law, it would be too early for the authority to record that he is likely to come out on bail either, or if he is let to remain at large,he will indulge in such activities in future which would be prejudicial to the maintenance of supplies of commodities essential to the community. This would be indicative of the non-application of mind, and it is only an expression of the impression made by the authority without any material, much less cogent material whatsoever. Under the circumstances, the order would suffer in the above grounds. The contention putforth by the learned counsel for the petitioner that in four adverse cases, he was either admonished or actually fined cannot be a reason to set aside the order. But, on the two grounds mentioned above, the order is liable to be set aside." https://hcservices.ecourts.gov.in/hcservices/ 3 Following the principles enunciated in the above judgments of this Court, we are of the considered opinion that the detaining authority had passed the impugned order of detention without applying his mind and hence the order of detention is liable to be set aside on this ground. 7.In view of the above, this habeas corpus petition is allowed and the order of detention passed by the second respondent in his Proceedings C.P.O./T.C./D.O.No.33/2010 dated 28.04.2010 is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. Sd/- Assistant Registrar (CO) /True copy/ Sub Assistant Registrar To 1.The Secretary to Government, Government of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2.The Commissioner of Police, Tiruchirappalli City, Tiruchirappalli. 3. The Superintendent, Central Prison, Trichy. 4. The Joint Secretary to Government, Public (Law & Order) Fort Saint George, Chennai-9. 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1CC TO MR.R.SUNDAR, ADVOCATE SR.7565 Km SR : 28.03.2011 : 3p/7c HCP(MD)No.49 of 2011 23.03.2011 https://hcservices.ecourts.gov.in/hcservices/