IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.07.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.No.140 of 2008 Ganesan @ Bomb Ganesan .. Petitioner/Detenu -Vs- 1. The Secretary to Government Home, Prohibition and Excise Department Government of Tamil Nadu Fort St.George Chennai-9 2. The Commissioner of Police Chennai City Police Egmore, Chennai-8 .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Habeas Corpus, to call for the records in connection with the order of detention passed by the second respondent dated 28.12.2007 in Memo No.435/BDFGISSV/2007 against the petitioner/detenu Tr.Ganesan @ Bomb Ganesan son of Muthu aged about 30 years, who confined at Central Prison, Puzhal, Chennai-66 and set aside the same and direct the respondents to produce the detenu before this Hon'ble Court and set him at liberty. For Petitioner :: Mr.N.Doraisamy for Mr.G.M.Shankar For Respondents :: Mr.M.Babu Muthu Meeran Addl. Public Prosecutor ORDER (Order of the Court was delivered by S.PALANIVELU, J.) The petitioner himself is the detenu, who has been detained under the order passed by the second respondent in proceedings no.435/BDFGISSV/2007 dated 28.12.2007 branding him as a 'Goonda'. He came to the adverse notice of the second respondent in a case on the file of S9 Pazhavanthangal Police Station in Crime No.436 of 2007 under Section 402 IPC. 2. The ground case upon which the petitioner has been implicated is https://hcservices.ecourts.gov.in/hcservices/ that on 27.10.2007, at about 12.30 hours, while the complainant one Gurunathan along with his friend Govindaraj were proceeding in a motor- cycle to Trisulam Pachaiamman Koil Street, they found a Scorpio car bearing Regn.No.TN-22-BC-4777 coming fast and it stopped in front of the motor-cycle; that the accused persons, namely, Jaishankar, Ramasamy, Sekar, Vijayakumar and Vairavan alighted from the vehicle armed with patta knives and threatened the complainant and another person and also caused injuries on the person of the complainant. The case has been registered in Crime No.639 of 2007 on the file of S5 Pallavaram Police Station under Sections 147, 148, 323, 324, 326 and 307 IPC. He was remanded to judicial custody on 21.11.2007 and his first remand was upto 30.11.2007 and his further remand was extended till 28.12.2007. 3. Learned counsel for the petitioner would submit that in the impugned detention order, the detaining authority has mentioned that he was satisfied that there is every possibility for the detenu to file a bail application before the concerned Court and every likelihood for him to get bail orders from the said Court, since the higher Courts or the same Courts on previous occasions have granted bail in the like cases and that if he comes out on bail, he will indulge in further activities which will be prejudicial to the maintenance of public order. It is his bottom line contention that in the absence of pendency of any bail application before the concerned Court or any other Court and in the absence of any material to show that he would file bail application in such cases, it is incomprehensible to say that the detaining authority arrived at the subjective satisfaction in this regard. 4. We have heard the learned Additional Public Prosecutor in this regard. He states that since the petitioner has been under remand, there is every possibility for him to file a bail application before the Court concerned and get the bail order. 5. Upon perusal of the records, factually, it is seen that neither he moved a bail application nor any material to show that he was taking steps to move any bail application. In this context, the learned counsel for the petitioner draws the attention of this Court to the judgment in Chandru v. The Commissioner of Police, Tiruchirappalli City and others, 2007 (1) TCJ 766 and also the judgment passed in H.C.P.No.92 of 2008 dated 16.6.2008 (in which one of us constituted the Coram) to the effect that the real possibility of the detenu coming out on bail could not be considered to be a ground by the detaining authority to make the order. By no stretch of imagination it can be said that the petitioner was taking steps to file the bail application before the Court. In such circumstances, we accept the contention of the learned counsel for the petitioner, as the satisfaction said to have been arrived by the detaining authority is not supported by any materials and on this ground the detention order gets vitiated. https://hcservices.ecourts.gov.in/hcservices/ 6. Accordingly, the habeas corpus petition is allowed and the impugned order of detention dated 28.12.2007 passed by the second respondent is set aside. The detenu shall be set at liberty forthwith, unless he is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ss To 1. The Secretary to Government of Tamil Nadu Home, Prohibition & Excise Department Fort St.George Chennai 600 009 2. The Commissioner of Police Chennai City Police Egmore Chennai 600 008 3.The Superintendent, Central Prison,Puzhal,Chennai -66 4.The Joint Secretary to Government, Public (Law and Order),Fort St. George, Chennai-9. 5. The Public Prosecutor High Court, Madras +1cc to Mr.N.Doraisamy, Advocate Sr 33557 SSN(CO) km/11.7. H.C.P.No.140 of 2008 https://hcservices.ecourts.gov.in/hcservices/