IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 30.03.2010 CORAM: THE HON'BLE MR.JUSTICE M. CHOCKALINGAM AND THE HON'BLE MR.JUSTICE C.S. KARNAN HCP. No.2197 of 2009 Thiru. Karthi ... Petitioner 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, Salem City. ... Respondents Petition 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 friend Thiru Pandian, Son of Jayakumar, aged 24 years, detained under Act 14 of 1982 vide detention order dated 28.10.2009 on the file of the second respondent herein made in C.M.P. No.47/GOONDA/Salem city/2009, quash the same and consequently direct the respondents herein to produce the body and person of the said detenu before this Court and thereafter set him at liberty from Central Prison, Salem. For Petitioner : Mr. N. Duraisamy for Mr. Ms. R. Subadra Devi For Respondents: Mr. V.R. Balasubramanian, Additional Public Prosecutor O R D E R (Order of the Court was made by M. CHOCKALINGAM,J) Challenge is made to an order of the second respondent herein made in C.M.P. No.47/GOONDA/Salem city/2009 dated 28.10.2009, whereby an order of detention came to be passed against the detenu Pandian branding him as "Goonda" under the Act 14 of 1982 https://hcservices.ecourts.gov.in/hcservices/ 2. The Court heard the learned counsel appearing for the petitioner and looked into the materials available on record, in particular, the order under challenge. 3. It is not in controversy that the sponsoring authority has put forth his recommendation before the detaining Authority that the detenu was involved in five adverse cases, namely, (1) Pallappatty police station Crime No.1126 of 2009 for the offence under Section 392 read with 397 of the Indian Penal Code (2) Pallappatty police station Crime No.1913 of 2009 for the offence under Section 380 of the Indian Penal Code (3) Pallappatty police station Crime No.1914 of 2009 for the offence under Section 380 of the Indian Penal Code (4) Pallappatty police station Crime No.1923 of 2009 for the offence under Section 392 read with 397 and 427 of the Indian Penal Code (5) Pallapatty police station Crime No.1924 of 2009 for the offence under Sections 392 read with 397 and 427 of the Indian Penal Code and also a ground case came to be registered in Crime No.1930 of 2009 by Pallappatty police station under Sections 392 read with 397, 427 of the Indian Penal Code on 3.10.2009 and on scrutiny of the materials, the Detaining Authority, after recording subjective satisfaction that the activities of the deenue were prejudicial to the maintenance of public order, passed the detention order, terming him as "Goonda" under the Act 14 of 1982. 4. Learned counsel appearing for the petitioner has assailed the order on two grounds. Insofar as ground case is concerned, the detenu has not moved for any bail, but the Authority has stated that the relatives of the detenu were taking steps to bail him out and hence, there was a real possibility of his coming out on bail. It has no basis. Learned counsel added further that insofar as Crime No.1126 of 2009 is concerned, though bail was granted in C.M.P. No.2131 of 2009, copy of the bail order was not served upon the detenu enabling him to know, under what ground the bail was granted. On these grounds, the detention order is liable to be set aside. 5. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6. As could be seen from the order under challenge, the detenu was involved in five cases and also a ground case in Crime No.1930 of 2009 registered by Pallappatty Police Station. As could be seen from paragraph 5 of the order, it reads as follows:- " 5. I am aware that bail was granted to Tr. Pandian on 4.8.2009 by the Principal Sessions Judge, Salem in C.M.P. No.2131/2009 for Pallappatty Police Station Crime No.1126/2009, https://hcservices.ecourts.gov.in/hcservices/ u/s. 392 r/w. 397 IPC. I am aware that Thiru Pandian is in remand for Pallappatty Police Station Crime Numbers.1913/2009, u/s. 380 IPC, 1914/2009, u/s. 380 IPC, 1923/2009, u/s. 392, r/w. 397, 427 IPC, 1924/2009, u/s. 392, r/w. 397, 427 IPC and in ground case Cr. No.1930/2009, u/s. 392 r/w. 397, 427 IPC and he has not moved bail applications for these cases. However, it is learnt that the relatives of Tr.Pandian are taking efforts to move bail applications to take him on bail. Further, bail is granted for similar cases by the same court or the higher court after efflux of certain time. I am also aware that there is a real possibility of his coming out on bail by filing bail applications for the above cases, since bails have been granted by the Principal Sessions Judge, Salem in C.M.P. No.2131/2009, dated 4.8.2009 for similar previous case of Pallappatty P.S. Cr. No.1126/2009, u/s. 392 r/w. 397 IPC, registered against Pandian and remanded on 30.5.2009. Further, the Judicial Magistrate No.4, Salem had granted bail in C.M.P. No.3925/2008, dated 13.10.2008 for similar case registered on 19.9.2008 in Veeranam P.S. Crime No.386/2008, u/s. 457, 380 r/w. 34 IPC. If he comes out on bail, he will indulge in further activities in future, which will be prejudicial to the maintenance of the public order. Further, the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging such activities, which are prejudicial to the maintenance of the public order. On the materials placed before me, I am satisfied that Thiru Pandian is a "Goonda" and there is a compelling necessity to detain him, in order to prevent him from indulging in acts which are prejudicial to the maintenance of public order, under the provisions of the Tamil Nadu Act 14 of 1982." 7. Therefore, from the very reading of the above, it is quite clear that no bail application was filed or pending before any criminal Court, but the Authority has stated that there was a real possibility of the detenu coming out on bail. It is quite indicative of the fact that it is a mere apprehension in the mind of the Authority without any material whatsoever, which, in the considered opinion of the Court, would be suffice to vitiate the order under challenge. https://hcservices.ecourts.gov.in/hcservices/ 8. Insofar as second ground is concerned, as rightly pointed out by the learned counsel for the petitioner, in Crime No.1126 of 2009 bail was granted in favour of the detenu on 4.8.2009 in C.M.P. No.2131 of 2009, but the booklet contains the bail order, , which was not served on the detenu. In a given case like this, copy of the order should have been furnished to the detenu, then only he would have known under what circumstances bail was granted, but copy was not given. If this is added further along with the first ground, it would vitiate the order under challenge. 9. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in C.M.P. No.47/GOONDA/Salem city/2009 dated 28.10.2009. The detenu, namely, Pandian, who is now confined at Central Prison, Salem is directed to be set at liberty forthwith unless his presence is required in connection with any other case. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar ssa. To 1.The Secretary to Government, The State of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai – 9. 2. The Commissioner of Police, Salem City. 3. The Superintendent, Central Prison, Salem. (In duplicate for Communication to Detenu) 4. The Joint Secretary to Government, Public (Law & Order) Department, Fort Saint George, Chennai-9. 5. The Public Prosecutor, High Court, Madras-104. 1 cc to Mr.R.Subadra Devi, Advocate, Sr.No.20962 H.C.P. No.2197 of 2009 TRM {CO} TP/13.4.2010. https://hcservices.ecourts.gov.in/hcservices/