1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.03.2011 CORAM: THE HONOURABLE MR. JUSTICE S.RAJESWARAN and THE HONOURABLE MR. JUSTICE G.M.AKBAR ALI H.C.P.(MD)No.33 of 2011 Nagappan @ Nagappan Asari @ Saleem ... Petitioner Vs. 1.The Commissioner of Police, Madurai City, Madurai. 2.State of Tamil Nadu, Rep.by its Secretary to Government, Government of Tamil Nadu, Home, Prohibition @ Excise Department, Chennai – 9. ... Respondents PRAYER: The Habeas Corpus petition is filed under Article 226 of the Constitution of India, to call for the records pertaining to the proceedings of the 1st respondent made in his proceedings in No.106/BDFGISSV/2010 dated 25.11.2010 and quash the same and the petitioner by name "Nagappan @ Nagappan Asari @ Saleem aged 39 years son of Pandi Asari and set him at liberty from now confined in Central Prison, Madurai. For Petitioner : Mr.K.Jeganathan For Respondents : Mr.M.Daniel Manoharan,APP O R D E R (Order of this Court was made by G.M.AKBAR ALI,J.) The petitioner himself is the detenu, challenging the detention order dated 25.11.2010 branding him as Goonda. 2.There are two adverse cases and a ground case were filed against the petitioner. The 1st adverse case was registered on 31.10.2010 in Crime NO.3476 of 2010 by D2 Sellur Police Station for an alleged offence under Sections 387, 506 (ii) I.P.C. for an occurrence alleged to have been taken place on 31.10.2010 at about 5.15 p.m. and the 2nd adverse case was registered on the same day for the alleged occurrence took place at 9.45 p.m. and the case was registered by E2 Madhichiam Police Station in Crime No.1830 of 2010 for an alleged offence under Sections 387 and 506(ii) I.P.C. https://hcservices.ecourts.gov.in/hcservices/ 2 3.However, on a complaint given by one Nagarajan stating that on 01.11.2010 at 10.15 a.m. the petitioner threatened him with dire consequences brandishing knife and robbed a sum of Rs.150/- and also threatened the public. A case was registered by the Thallakulam Police Station in Crime No.3312 of 2010 for an alleged offence under Section 394 r/w 397 I.P.C. 4.As far as the detenu is concerned, he is an habitual offender of commission of offences punishable under chapter XVII and XXII of I.P.C. The detaining authority has considered various grounds and has detained the petitioner as per the provisions of the Tamil Nadu Act 14 of 1982. 5.Mr.K.Jeganathan, learned counsel for the petitioner would submit that 2 adverse cases were registered on 31.10.2010 for an alleged offence under Sections 387 and 506(ii) I.P.C. and on the next day i.e., on 01.11.2010, the ground case was registered, which shows that the detaining authority and the Police Officials are interested only to see the petitioner is behind without any trial, which is against the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. 6.The learned counsel for the petitioner pointed out that while considering the bail application, the detaining authority has stated that the bail application is filed and the same is pending disposal before the Principal and District Sessions Court, Madurai and however, had come to an inference that the detenu is making efforts to file application and there is a real possibility of the detenu coming out of bail and may indulge in future activities. The learned counsel also drew our attention to the statement recorded from the brother of the detenu, wherein he has stated that he is taking efforts to file bail application in the adverse cases. 7.The learned counsel relied on a decision of the Division Bench of this Court reported in 2008(3) MLJ 144 (S.Andal Vs. District Magistrate and District Collector, Madurai District, Madurai and another) wherein the Division Bench has held as follows: "Where a bail application filed by the detenue was pending before the Court and the Detaining Authority coming to the conclusion that there was a real possibility of the detenue coming out on bail, even prior to the passing of an order on bail application, held the detention order was passed without proper application of mind, rendering it vitiated." https://hcservices.ecourts.gov.in/hcservices/ 3 8.Per contra, the learned Additional Public Prosecutor would submit that the detaining authority has considered the antecedents of the detenu in involving various cases indulging in activities which will prejudicial to the public order and while considering the bail application, the detaining authority considered the cogent material relying upon the statement given by the brother of the detenu. Therefore, the statement is a cogent material, available from the detaining authority and there is no illegality in considering the statement. 9.The learned Public Prosecutor also submitted that the petitioner has filed a bail application in the ground case and the same is pending and therefore, the detaining authority has applied his mind and come to a conclusion that there is a real possibility for the detenu to come out of bail and the same cannot be found fault with. 10.Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondents. 11.The 1st adverse case was registered on 31.10.2010 for an alleged occurrence, which took place at 5.15 p.m. and the 2nd adverse case was registered on the same day for an alleged offence, which took place at 9.45 p.m. and the ground case was registered on the very next day morning for an alleged occurrence, which took place at 10.15 a.m. As rightly pointed out by the learned counsel for the petitioner that filing of three cases consequently will raise presumption that the petitioner is an habitual offender and the detaining authority determined to pass an order of detention under Act 14 of 1982. However, while considering the bail application, the detaining authority has stated in paragraph 5 of the grounds that the bail application is pending for disposal before the Principal District and Sessions Judge and he has not filed any other bail application. 12.In 2008(3) MLJ 144 (stated supra) the Division Bench of this Court held that when the bail application is pending, the detaining authority cannot prejudge and come to the conclusion that there is a likelihood of the detenu coming out of bail and indulging future activities which is prejudicial to the public order. 13.Therefore, we are of the considered view that the impugned detention order was passed mechanically and on non application of mind and as such the detention order dated 25.11.2010 is vitiated and the detenu is set at liberty forthwith, unless his detention is required in connection with https://hcservices.ecourts.gov.in/hcservices/ 4 any other case. Sd/- Assistant Registrar(C.O) /True Copy/ Sub-Assitant Registrar To 1.The Commissioner of Police, Madurai City, Madurai. 2.The Secretary to Government, State of Tamil Nadu, Government of Tamil Nadu, Home, Prohibition @ Excise Department, Chennai – 9. 3.THe Superintendent of Police, Central Prison, Madurai 4.THe Joint Secretary to Government, Public (Law and Order) Fort Saint George, Chennai-9 5.THe Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai +One CC to Mr.K.Jeganathan, Advocate, SR.No.6557 nbj rl/7c – 28.4.2011 H.C.P.(MD)No.33 of 2011 14.03.2011 https://hcservices.ecourts.gov.in/hcservices/