IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.1.2010 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN and THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Habeas Corpus Petition No.63 of 2010 and M.P.No.1 of 2010 Periyasamy S/o. Chinna Gounder .. Petitioner Vs. 1. State of Tamilnadu, represented by its Secretary, Department of Home, Prohibition and Excise, Chennai 600 009. 2. The District Collector and District Magistrate, Salem District. .. Respondents Prayer : Petition under Article 226 of the Constitution of India, praying for issuance of Writ of Habeas Corpus, to call for the records in CMP.No.01/GOONDA/C2/2010 dated 9.1.2010 on the file of second respondent herein and quash the same as illegal and direct the respondents to produce the detenu Chelladurai, son of Chinna Gounder, aged about 32 years, now confined at Central Prison, Salem before this Court and set him at liberty. For Petitioner :: Mr. R. Sankarasubbu For Respondents :: Mr. M.Babu Muthu Meeran, Additional Public Prosecutor O R D E R (Order of the Court was made by C.NAGAPPAN, J.) The brother of the detenu has filed the Habeas Corpus Petition seeking for quashing the Order of detention, dated 9.1.2010, bearing C.M.P.No.01/GOONDA/C2/2010, passed by the second respondent. https://hcservices.ecourts.gov.in/hcservices/ 2. On the recommendation made by the Sponsoring Authority citing five adverse cases in Crime No.705/2009 for the alleged offences under Sections 147, 148, 341 r/w Section 3(1) of Tamil Nadu Public Property (Prevention of Damage and Loss) Act, 1992 r/w Section 109 IPC, Mecheri Police Station; Crime No.706/2009 for the alleged offences under Sections 147, 148, 341 r/w Section 3(1) of TNPPD Act r/w Section 109 IPC, Mecheri Police Station; Crime No.660/2009 for the alleged offences under Section 3 of TNPPD Act, Sections 337 and 120(B) IPC, Magudanchavadi Police Station; Crime No.471/2009 for the alleged offences under Section 3 of TNPPD Act, Sections 341 and 324 IPC, Steelplant Police Station and Crime No.589/2009 for the alleged offences under Section 3 of TNPPD Act and Section 120(B) IPC, Attayampatty Police Station and the ground case in Crime No.590/2009 under Section 3 of TNPPD Act and Section 120(B) IPC, Attayampatty Police Station, and after looking into the materials available, the second respondent, the District Collector and District Magistrate, Salem district, formed an opinion that the detenu was to be termed as 'GOONDA' since his activities are prejudicial to the maintenance of public order as contemplated under Section 2(f) of the Tamil Nadu Act 14 of 1982 and in order to prevent him from indulging in such activities in future, the Order of detention, dated 9.1.2010, was passed. The said Order is under challenge in this petition. 3. Mr. Sankarasubbu, learned counsel appearing for the petitioner, mainly relies on the following grounds while assailing the order of detention. (1) There were six incidents in succession on the same day, on which cases have been registered and they have been shown as five adverse cases and ground case and there is no material to come to the conclusion that the detenu is a 'Goonda' who habitually committed the offences or attempted to commit the offences referred to in the Act 14 of 1982 and the order of detention is illegal and liable to be set aside. (2)The Detaining Authority has taken into consideration extraneous material in the sense that the offences alleged in the ground case as well as in the fifth adverse case do not fall under Chapters XVI, XVII and XXII of IPC and those incidents cannot be made a basis for satisfaction of the Detaining Authority that the detenu is a habitual offender and hence the detention order is vitiated. https://hcservices.ecourts.gov.in/hcservices/ (3) The order of detention reflects that the detenu was in judicial remand in the ground case as well as in the five adverse cases, but the Detaining Authority has considered only the real possibility of the detenu coming out on bail in the ground case and omitted to consider such a possibility in the adverse cases in which he was in remand and there was non-application of mind on the part of Detaining Authority which would vitiate the order of detention. 4. Per contra, the learned Additional Public Prosecutor submits that successive acts committed by the detenu on the same day were taken into consideration by the Detaining Authority to arrive at the subjective satisfaction that the detenu was habitually committing the offences and to conclude that he was a 'Goonda' and though offences mentioned in the ground case and in one of the adverse cases do not fall under the relevant chapters mentioned under the Act, the offences mentioned in four of the adverse cases do fall under Chapters XVI, XVII and XXII of IPC and hence the order of detention is valid in law and the Detaining Authority has considered the real possibility of the detenu coming out on bail by filing another bail application in the ground case and has reached the subjective satisfaction which would be sufficient to sustain the order of detention. 5. In support of his submission on the first ground, Mr. Sankarasubbu, learned counsel appearing for the petitioner, relies on the following decisions rendered by various Division Bench of this Court in MASANAM V. THE DISTRICT MAGISTRATE AND COLLECTOR OF TIRUNELVELI AND ANOTHER (1992 L.W. (Crl.) 488); MAHESH V. STATE OF TAMIL NADU REP. BY ITS SECRETARY TO GOVERNMENT, PROHIBITION & EXCISE DEPARTMENT AND & ANOTHER (2002 (2) MWN (Cr.) 153) and the decision in MURUGAN (a) SENTHILVEL (a) KUMAR V. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, KANYAKUMARI DIST. AND ANOTHER (2004-2-L.W. (Crl.) 717). 6. The incidents relating to the adverse cases took place on 11.11.2009 at 22.10 hours, 22.10 hours, 21.45 hours, 22.45 hours and 12 midnight respectively and the incident in the ground case happened at 23.45 pm on 11.11.2009 itself. In short, all the incidents had taken place in succession on the same day. Following the dictum of the Apex Court in the decision in VIJAY NARAIN SINGH VS. STATE OF BIHAR (AIR 1984 SC 1334), this Court, in the decisions referred to above, held that the expression 'habitually' means repeatedly or persistently and it implies continuity of similar repetitive acts and the acts committed by the detenu in succession on the same day, cannot be taken as material to hold that he is a 'Goonda' within https://hcservices.ecourts.gov.in/hcservices/ the meaning of Section 2(f) of the Act and the impugned order of detention was vitiated. The ratio of the decisions, is squarely applicable to the facts of the present case. As already seen, the acts committed by the detenu in succession, in duration of two hours on the same day, cannot be taken as material to characterise the detenu as 'Goonda' within the meaning of Section 2(f) of the Act and the impugned order of detention is vitiated on this ground. 7. The second ground raised by the learned counsel for the petitioner is that the offences alleged in the fifth adverse case as well as in the ground case do not fall under Chapters XVI, XVII and XXII of IPC and that cannot be considered as a material by the Detaining Authority for passing the order of detention and consideration of those materials would amount to consideration of extraneous materials which would vitiate the order of detention. In support of his submission, the learned counsel relies on the decision of the Supreme Court in MUSTAKMIYA JABBARMIYA SHAIKH VS. M.M.MEHTA, COMMISSIONER OF POLICE AND OTHERS (1995 Supreme Court Cases (Cri) 454). The ratio of the decision is that in order to detain a person, it is essential to show that such a person habitually commits or attempts to commit or abets the commission of offences punishable under relevant chapters of the Indian Penal Code mentioned under the Preventive Detention Act. 8. The offences alleged against the present detenu in the fifth adverse case and ground case are one and the same and the alleged offences are Section 3 of TNPPD Act and Section 120(B) IPC and admittedly those offences do not fall under Chapters XVI, XVII and XXII of IPC, which is the requirement of Section 2(f) of the Act 14/1982. Therefore, those incidents cannot be made a basis for satisfaction of the Detaining Authority that the detenu is a habitual offender and on this ground also, the detention order is vitiated. 9. The third and last ground raised by the learned counsel for the petitioner is that there is non-application of mind on the part of the Detaining Authority in omitting to consider the real possibility of the detenu coming out on bail in the adverse cases in which he was on remand on the date of passing of the detention order and that would vitiate the order of detention. In the detention order, the Detaining Authority has categorically mentioned that the detenu was in judicial remand in five adverse cases and the ground case and it is also stated that the bail petitions have been filed in adverse cases 1 to 4 and they are pending. In so far as the ground case is concerned, the detenu filed a bail application and it was dismissed on 23.12.2009 by the Fast Track Court No.I, Salem. The Detaining Authority has only considered the ground case and has stated that there is a real possibility of the detenu be released on bail by filing a bail application again in near future. Having found that the detenu is in judicial remand in five adverse cases and https://hcservices.ecourts.gov.in/hcservices/ bail petitions have been filed in four of them and kept pending, it is the duty of the Detaining Authority to consider the real possibility of the detenu coming out on bail in those cases to reach the subjective satisfaction and that was not done. In other words, the Detaining Authority has recorded its satisfaction of the real possibility of the detenu coming out on bail only in the ground case and left out the adverse cases, which are equally grave in nature and the detention order is vitiated by non-application of mind and it is liable to be quashed on this ground also. 10. For all the reasons stated above, the Habeas Corpus Petition is allowed and the impugned detention order dated 9.1.2010 is set aside. The detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case. Connected M.P.No.1 of 2010 is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vks Copy to:- 1. The Secretary to Government of Tamil Nadu, Department of Home, Prohibition and Excise, Chennai 600 009. 2. The District Collector and District Magistrate, Salem District. 3. The Superintendent of Prisons, Central Prison, Salem. 4. The Joint Secretary to Government, Public (Law & Order) Department, Chennai-9. 5.The Public Prosecutor, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ 6. The Section Officer, Criminal Section, High Court, Madras 104. 1 cc to Mr.R.Sankarasubbu, Advocate, Sr.No.4948 HCP.No. 63 of 2010 and M.P.No.1 of 2010 GS {CO} TP/5.2.2010. https://hcservices.ecourts.gov.in/hcservices/