IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.06.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.NO.125 OF 2008 Arunachalam .. Petitioner Vs. 1.State of Tamil Nadu, represented by its Secretary, Department of Prohibition and Excise, Fort St. George, Chennai-600 009. 2.The District Collector and District Magistrate, Cuddalore District at Cuddalore .. Respondents This habeas corpus petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of habeas corpus to call for the records in C4/DOI/2008, dated 13.01.2008 on the file of the second respondent herein and to quash the same as illegal and to direct the respondents to produce the detenu Senthil Kumar @ Senthil @ Kunjan, son of Jayapal, now confined at Central Prison, Cuddalore, before the court and set him at liberty. For Petitioner : Mr.R.Sankarsubbu For Respondents: Mr.Babu Muthu Meeran, APP - - - - ORDER (The order of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of the second respondent dated 13.01.2008 made in C4/D.O/1/2008, whereby an order of detention under the Tamil Nadu Act 14 of 1982 was made against Senthil Kumar @ Senthi @ Kunjan, branding him as Goonda as defined under the provisions of that Act. 2.The affidavit filed in support of the petition is perused along with the grounds of attack and also the order under challenge. The Court heard the learned counsel for the petitioner and also the learned counsel for the respondents State. https://hcservices.ecourts.gov.in/hcservices/ 3.Consequent upon the recommendations made by the Sponsoring Authority along with the materials in 5 adverse cases in Crime Nos.436/2001, 12/2002, 75/2004, 202/2006 and 123/2007 registered by Bhuvanagiri Police Station under the provisions of the Indian Penal Code and also a ground case in Crime No.2/2008 registered by the same police station, the Detaining Authority recorded its finding that he has arrived at subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and peace and hence he was to be termed as Goonda as defined under the Act and further, a necessity arose to pass an order of detention under the provisions of the Act in order to prevent him from indulging in such activities in future and accordingly, he made an order of detention, which is the subject matter of challenge before this court. 4.Advancing arguments on behalf of the petitioner, in his sincere attempt of assailing the order under challenge, the learned counsel would submit that the order of detention was passed on 13.01.2008 on the materials made available pertaining to 5 adverse cases and one ground case. In the instant case, no one of the adverse cases or the ground case was likely to cause disturbance of peace or tranquility of public or would tell upon any disturbance to the maintenance of public order, which were all against individuals and also against the property and under these circumstances, he would not be termed as habitually committing the same kind of offences and therefore, there was no necessity to invoke the provisions to pass an order of preventive detention. There was no nexus between the adverse cases and the ground case and under these circumstances, the order has got to be quashed. 5.Added further the learned counsel that there was an order of detention passed by the same Authority against the detenu and it was also the subject matter of habeas corpus petition before this court and this Court had an occasion to consider and to set aside the order. Now, all the 5 adverse cases, which were placed by the Sponsoring Authority before the Detaining Authority, were taken into consideration and the Authority has passed the order of detention present. Placing reliance upon the decision of the Supreme Court reported in 1989 SCC (Cri) 367 (CHHAGAN BHAGWAN KAHAR VS. N.L.KALNA AND OTHERS) and 1989 SCC (Cri) 716 (RAMESH VS. STATE OF GUJARAT AND OTHERS), the learned counsel would contend that the contention is fortified and hence so long as fresh materials were not placed by the Sponsoring Authority before the Detaining Authority, the Detaining Authority should not have passed the order and hence it has got to be set aside. Thirdly, the detenu was arrested on 4.1.2008 and the order of detention came to be passed on 13.01.2008. In the meanwhile, no application for bail was filed by the detenu in Crime No.2 of 2008 before any court of criminal jurisdiction, but the Detaining Authority has pointed out that he was aware of the fact that no bail application was filed and even then, there was possibility of the detenu coming out on bail; that it is only a mere statement made without reasonable basis and that on that ground also, the order of detention has got to be quashed. https://hcservices.ecourts.gov.in/hcservices/ 6.Added further the learned counsel that fourthly, as per the legal mandate, an intimation should have been given to one of the close relatives of the detenu immediately after his arrest, but it was not given and hence the order of detention has got to be quashed on that ground also. 7.The Court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 8.Concededly, the order under challenge came to be passed by the Detaining Authority on 13.01.2008 on the strength of 5 adverse cases and one ground case, as referred to above. The first contention put forth by the learned counsel for the petitioner is that there was no nexus between the adverse cases and also the ground case and that he could not be termed as habitual offender; that the cases registered against him would indicate that they were all the crimes alleged to have been committed against the persons or the property of the individuals and under these circumstances, the order has got to be quashed, which in the opinion of the Court cannot be countenanced. In the instant case, it is true, there were 5 adverse cases and also one ground case. The Court has also noted all the particulars given in respect of the relevant facts, which were placed before the Detaining Authority, as could be seen from the available materials. It is true, though the offences were alleged to have been committed against the property and the individuals, the Detaining Authority has pointed out, while describing the fact in respect of the Crime No.2 of 2008, the ground case, that "On seeing his illegal activities the public got fear and ran hither and there, entire traffic came to stand still, the shop vendors closed their shops and thereby he caused breach of peace and tranquility. Later, he left the scene with his weapon". Thus, looking from the point of view of the narration of the commission of offence, it would be quite clear that at the time when the offence was committed, he has caused breach of peace and tranquility. Apart from that, all the offences are sufficient and in particular the ground case to record such a finding and hence the first contention put forth by the learned counsel for the petitioner, though attractive at the first instance, does not stand the scrutiny of law. Accordingly, it is rejected. 9.So far as the other contention is concerned, originally, there was habeas corpus petition filed before this court, challenging the order of detention passed earlier against the very same detenu and the same was also quashed. At this juncture, it is pertinent to point out that all these 5 adverse cases, which were referred to in the original order of detention, which was the subject matter before this court and subsequently, it was quashed, were exactly the cases which were referred to in the present order. The contention put forth by the learned counsel for the respondents is that in the ground case, all the materials are afresh and therefore what was placed by the Sponsoring Authority before the Detaining Authority was a fresh material and under these circumstances, now the present order came to be passed and hence that contention has got to be rejected. This court is unable to agree with the contention put forth by the learned https://hcservices.ecourts.gov.in/hcservices/ counsel for the respondents in view of the decisions of the Supreme Court, which were relied on by the learned counsel for the petitioner, as referred to above. It would be more apt and appropriate to reproduce paragraph 12 of the decision of the Supreme Court reported in 1989 SCC (Cri) 367, which reads as follows: "12.It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the court strikes down an earlier order by issuing rule it nullifies the entire order." Paragraph 10 of the decision of the Supreme Court reported in 1989 SCC (Cri) 716 reads as follows: "On a careful scrutiny of the grounds of detention, we unreservedly hold that the detaining authority has taken into consideration the two criminal cases mentioned under S. Nos.1 and 2 of the table which were the materials in the earlier order of detention that had been quashed and that it cannot be said that those two cases are mentioned only for a limited purpose of showing the antecedents of the detenu." From a very reading of the decisions cited above, it would be quite clear that a fresh material would mean that all the materials, which were placed before the Detaining Authority, should not have been one, which were already considered by the Detaining Authority while passing the earlier order. In a given case like this, when the Detaining Authority has passed the order of detention, the materials must be in entirety afresh and all the adverse cases, which were the subject matter of the earlier detention order and the Authority has also recorded subjective satisfaction on the facts and circumstances of those adverse cases and subsequently, it came to be the subject matter of habeas corpus petition before this court and was also quashed and now, by no stretch of imagination, could be considered as a fresh material placed. The materials, which were placed originally and considered, cannot be the fresh materials now placed. Hence applying the decisions of the Apex Court, as referred to above, the Court, without any hesitation, must state that the materials were not afresh and hence this would be the strong ground to set aside the order. 10.The added circumstance was that the detenu was arrested on 04.01.2008 and the detention order came to be passed on 13.01.2008. Admittedly, no bail application was made. In paragraph 5 of the order of detention, the Detaining Authority has stated as follows: https://hcservices.ecourts.gov.in/hcservices/ "I am aware that Thiru. Senthilkumar @ Senthil @ Kunjan, is under judicial custody up to 18.01.2008 in connection with Bhuvanagiri Police Station Cr.No.2/2008 and lodged at Central Prison, Cuddalore. There is real possibility of his coming out on bail by filing bail application for the above case since in similar cases bails are granted by the concerned Court or Higher Courts after lapse of time." A reading of the above would reveal that there was no bail application filed. The date of arrest was 04.01.2008 and the order came to be passed on 13.01.2008 and no application for bail was filed and all the cases were grave in nature and it passed in the mind of the Detaining Authority that there is likelihood of his coming out on bail, which in the opinion of the court is without any basis whatsoever. Under these circumstances, it is a mere statement made in order to make such an order under challenge. 11.Lastly, the learned counsel for the petitioner would submit that there was no intimation at all to the close relatives of the detenu about the arrest. The learned counsel for the State brought to the notice of the court that there was an intimation given and it was also received by his brother and hence in view of the same, the same has got to be accepted. The other grounds, which are referred to above, in the opinion of the Court, would be sufficient to set aside the order of detention. 12.Accordingly, the detention order is set aside. This Habeas Corpus Petition is allowed. The detenu 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. vvk To 1.THE SECRETARY STATE OF TAMIL NADU REPRESENTED BY ITS SECRETARY DEPARTMENT OF PROHIBITION AND EXCISE FORT ST GEORGE CHENNAI 2. THE DISTRICT COLLECTOR OF DISTRICT MAGISTRATE CUDDALORE DISTRICT CUDDALORE https://hcservices.ecourts.gov.in/hcservices/ 3. THE SUPERINTENDENT CENTRAL PRISON CUDDALORE 4. THE JOINT SECRETRY TO GOVERNMENT PUBLIC (LAW AND ORDER) FORT ST.GEORGE, CHENNAI - 9 5. THE ADDITIONAL PUBLIC PROSECUTOR, HIGH COURT MADRAS H.C.P.NO.125 OF 2008 ssm(co) sra(07/07/2008) https://hcservices.ecourts.gov.in/hcservices/