IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27-9-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN H.C.P.No.978 of 2010 Kalaiarasi .. Petitioner vs 1.State of Tamil Nadu Rep. By its Secretary Home, Prohibition and Excise Department Fort St. George, Chennai 600 009. 2.The Commissioner of Police O/o. Commissioner of Police Greater Chennai Egmore, Chennai 600 008. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus calling for the records pertaining to the detenu Mr.Sridhar, son of Mr.Muthu, who is detained under Tamil Nadu Act 14 of 1982 as Goonda at Central Prison, Puzhal, Chennai, by the second respondent vide his order passed in Memo No.231/BDFGISSV/2010 dated 26.4.2010 and to quash the same and to direct the respondents herein to produce the body of the detenu aged about 32 years, before this Court and to set him at liberty. For Petitioner : Mr.I.Periaswamy For Respondents : Mr.Babu Muthu Meeran Additional Public Prosecutor ORDER (Order of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of detention made by the second respondent dated 26.4.2010, whereby the husband of the petitioner by name Sridhar was ordered to be detained under Act 14/82 terming him as a Goonda as defined under the provisions of that Act. 2.The Court heard the learned Counsel for the petitioner and also looked into all the materials and in particular the order under challenge. 3.It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the said detenu was involved in one adverse case in J5 Shastri Nagar Police Station Crime No.319/2010 registered under Sec.174 Cr.P.C. @ Sections 147, 148, 341 and 302 of https://hcservices.ecourts.gov.in/hcservices/ IPC, and also in one ground case registered by the very same police station in Crime No.326/2010 under Sections 147, 148, 341, 332, 427, 336, 307 and 506(2) of IPC for an occurrence that has taken place on 16.4.2010, and he was arrested on the same day, the detaining authority after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of the public order, has made the order under challenge. 4.Advancing arguments on behalf of the petitioner, the learned Counsel put forth two grounds which, according to him, would suffice to set aside the order. According to him, either in the adverse case or in the ground case, no bail application was actually filed; but, the authority has stated that there was a real possibility of the detenu coming out on bail, and the authority has also pointed out that in similar cases, bail was granted, and though the particulars of those cases were mentioned in the order, no copies of those materials were handed over to him in order to enable him to understand about those cases, and under the circumstances, the observation that there was a real possibility of the detenu coming out on bail is without basis or material, much less cogent material. 5.Added further the learned Counsel that the first adverse case was actually registered under Sec.302 of IPC for an occurrence that has taken place on 13.4.2010; that the order came to be passed on 26.4.2010; that ordinarily in a case of murder, bail would not be granted unless and until the investigation is over; and that under the circumstances, the observation made by the authority that there was a real possibility of his coming out on bail is without any basis or any material, much less cogent material. 6.Added further the learned Counsel that there was a special report as found in the booklet; that it did not contain the date, and thus he was not made to know when the special report was made, and hence it is a fit case where it has got to be set aside. 7.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 8.As regards the first ground, it is pertinent to point out that no bail application was made either in the adverse case or in the ground case. But the authority has stated that there was a real possibility of the detenu coming out on bail. Paragraph 4 of the grounds of detention reads as follows: "4.I am aware that Thiru.Senthil, is in remand in J.5 Shastri Nagar Police Station Crime. Nos.319/2010 and 326/2010 he has not moved any bail so far. The sponsoring authority has stated that the relatives of Thiru. Sridhar are taking action to take him on bail in the above case by filing bail application before the Court. Since in a case registered under Sections 341 and 307 IPC at E-2 Royapettah Police Station Cr.No.382/2009 bail was granted in Crl.M.P. No.5266/2009 by the Court of Principal Sessions, Chennai, within 21 days. In a similar case bail was granted in R-7 K.K.Nagar Police Station Crime No.301/2009 registered under Sections 147, 148, 341 and 302 IPC in Crl.O.P.No.13843/2009 https://hcservices.ecourts.gov.in/hcservices/ by the Hon'ble High Court. Hence there is real possibility of his coming out on bail by filing bail application in the above case before the appropriate Court." 9.From the above, it would be quite clear that the observation that there was a real possibility of the detenu coming out on bail is without any basis or material much less cogent material which the law would require. That apart, the adverse case was registered under Sec.302 IPC, and ordinarily in such cases, bail will not be granted within a short span of time and that too before the investigation is over. Hence there was no cogent material before the detaining authority to observe so. 10.As regards the second ground, the special report did not contain the date, and thus the detenu was not made known when the special report was made. Hence on both the grounds, the order has got to be set aside. 11.Accordingly, the order of detention passed by the second respondent is set aside, and the detenu is directed to be set at liberty forthwith unless his custody is required in connection with any other case. This petition is allowed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Secretary Home, Prohibition and Excise Department Fort St. George, Chennai 600 009. 2.The Commissioner of Police O/o. Commissioner of Police Greater Chennai Egmore, Chennai 600 008. 3.The Public Prosecutor High Court, Madras. 4.The Superintendent, Central Prison, Puzhal, Chennai. 5.The Joint Secretary to Government, Public (Law and Order) Department, Fort St.George, Chennai -9. 1 cc To Mr.I.Periaswamy, Advocate, SR.71492. HCP No.978 of 2010 GG(CO) RVL 12.10.2010 https://hcservices.ecourts.gov.in/hcservices/