IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 01.04.2010 CORAM: THE HON'BLE MR.JUSTICE M. CHOCKALINGAM AND THE HON'BLE MR.JUSTICE C.S. KARNAN HCP. No.2380 of 2009 and 327 of 2010 D. Senthil ... Petitioner in both H.C.Ps. 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, Madurai City, Madurai. ... Respondents in both H.C.Ps. Petitions under Article 226 of the Constitution of India, seeking to issue a writ of Habeas Corpus, to call for the entire records leading to the detention of the petitioner's friends namely Thiru Alagar @ Tamilalagar @ Pannikutti Alagar, aged 36 years, son of Sundaram and Thiru. John, aged 37 years, son of Sundarraj respectively, detained under Act 14/82 vide proceedings Nos.60/BDFGISSV/2009 dated 11.9.2009 and 63/BDFGISSV/2009 dated 22.9.2009 respectively on the file of the second respondent herein made in the proceedings and quash the same and consequently direct the respondents herein to produce the body and person of Thiru Alagar @ Tamilalagar @ Pannikutti Alagar son of Sundaram and Thiru. John son of Sundarraj of the said detenus before this Court and thereafter, set them at liberty from Central Prison, Madurai. For Petitioner : Mr. R. Krishnamurthy for Ms. E. Ezhil Caroline 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) Learned counsel appearing for the petitioner brought to the notice of this Court that yet another petition in H.C.P. No.327 of 2010 is also pending before the Court. The detenus in both the petitions are co-accused in Crime No.1273 of 2009. Under the circumstances, H.C.P. No.327 of 2010 can be taken up along with H.C.P. No.2380 of 2009, for which, learned Additional Public Prosecutor has no objection. Hence, H.C.P. No.327 of 2010 is also called and taken up along with H.C.P. No.2380 of 2009 and following common order is passed:- Challenge is made to the order dated 11.9.2009 in proceedings No.60/BDFGISSV/2009 and order dated 22.9.2009 in proceeding No.63/BDFGISSV/ 2009 respectively passed by the second respondent, whereby the detenus viz. Thiru Alagar @ Tamilalagar @ Pannikutti Alagar and Thiru. John, who are petitioner's friends, were ordered to be detained under the Act 14 of 1982, branding them as "Goondas". 2. This Court heard the learned counsel appearing for the petitioner and also looked into the materials available on record, in particular, the order under challenge. 3. It is not in controversy that pursuant to the recommendation made by the sponsoring Authority that the detenus are involved in two adverse cases viz. (i) Madurai Railway police station Crime No.528 of 2009 for the offences under Sections 147, 341, 352, 294(b) of the Indian Penal Code (ii) Madurai Railway police Crime No.529 of 2009 for the offences under Sections 147, 341, 294(b) of the Indian Penal Code and Sections 2 and 3 of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 and also a ground case in Crime No.1273 of 2009 registered by C3 S.S. Colony police station for the offences under Sections 392 read with 397, 506(ii) of the Indian Penal code and on scrutiny of materials, the detaining Authority has arrived at the subjective satisfaction that the activities of the detenus were prejudicial to the maintenance of public order and passed the detention order, after terming the detenus as "Goondas". 4. Advancing arguments on behalf of the petitioner, learned counsel urged two grounds for setting aside the detention orders. Firstly, the detenus filed a bail application before the Judicial Magistrate No.V, Madurai in Crl.M.P. Nos.2154 of 2009 on 2.9,.2009 and the same was dismissed on the very day, observing that the offence was exclusively triable by the Court of Sessions and https://hcservices.ecourts.gov.in/hcservices/ hence, application was not to be entertained. Thereafter, they filed an application before the District and Sessions Court, Madurai in Crl.M.P. No.3848 of 2009 and the same is pending. While the bail application was pending consideration before the Sessions Court, the Authority has stated that there is a most likely of detenu coming out on bail and if he comes out on bail, he will indulge in future activies which will be prejudicial to the maintenance of public order. It cannot form basis for making the order of detention. 5. Learned counsel added further that in the instant case, the detenus are originally involved in two adverse cases and both the cases are registered for damaging railway properties and other provisions. In the instant case, the ground case in Crime No.1273 of 2009 was registered under Sections 392 read with 397, 506(ii) of the Indian Penal Code. Learned counsel, pointing to the provisions of law under which the ground case was registered, urged that it was only a stray incident, on the strength of which the provisions of Goondas Act cannot be invoked. Under the circumstances, both the grounds are applicable for setting aside the order under challenge. 6. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 7. It is not in controversy that the detenus viz. Thiru Alagar @ Tamilalagar @ Pannikutti Alagar and Thiru. John, pursuant to the arrest in connection with Crime No.1273 of 2009 on 2.9.2009, produced before the Court and they were judicially remanded on the same day. It is also true that the detenus filed a bail application before the Judicial Magistrate No.V, Madurai in Crl.M.P. Nos.2154 of 2009 on 2.9,.2009 and the same was dismissed on the very day, observing that the offence was exclusively triable by the Court of Sessions and hence, application was not to be entertained. Thereafter, they filed an application before the District and Sessions Court, Madurai in Crl.M.P. No.3848 of 2009 and the same was pending at the time when the order under challenge came to be passed. 8. While the matter stood thus, the Authority has observed in its order that there is a most likely of detenu coming out on bail and if he comes out on bail, he will indulge in future activies which will be prejudicial to the maintenance of public order. Once the bail application was pending consideration before the competent Authority, it was premature on the part of the detaining Authority to state that there is a most likely of the detenu coming out on bail. It was only an inference without any basis and the expression of the Authority is without any material much less cogent material and thus, in the considered opinion of the Court, this ground itself would be suffice to vitiate the detention order. https://hcservices.ecourts.gov.in/hcservices/ 9. Insofar as second ground is concerned, this Court is unable to agree with the learned counsel for the petitioner. At the time of passing the detention order, the case in Crime No.1273 of 2009 was registered under Sections 392 read with 397, 506(ii) of the Indian Penal Code against the detenus. Previously they were involved in two adverse cases for damaging the railway properties and the same were pending. Under the circumstances, it cannot be stated that the ground case was a stray incident and on the strength of which, the detention order was passed. Hence, the second ground raised by the learned counsel for the petitioner has got to be rejected and accordingly, it is rejected. In respect of first ground alone, in view of the infirmity noticed by this Court, the detention orders are liable to be set aside. 10. Accordingly, the Habeas Corpus Petitions are allowed, setting aside the detention order dated 11.9.2009 in proceedings No.60/BDFGISSV/2009 and order dated 22.9.2009 in proceeding No.63/BDFGISSV/ 2009 respectively passed by the second respondent. The detenus viz. Thiru Alagar @ Tamilalagar @ Pannikutti Alagar and Thiru. John, who are now confined at Central Prison, Madurai 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 Secretary to the Government, Home, Prohibition and Excise Department., Fort St.George, Chennai – 9. 2. The Commissioner of Police, Madurai City, Madurai. 3. The Superintendent, Central Prison, Madurai. https://hcservices.ecourts.gov.in/hcservices/ 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 + 2 ccs to Mr.R.Krishnamurthy, Advocate SR No.21783 & 21784 GV(CO) SR/20.4.2010 H.C.P. Nos.2380 of 2009 and ` 327 of 2010 https://hcservices.ecourts.gov.in/hcservices/