IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.06.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.NO.17 OF 2008 Shantha .. Petitioner Vs. 1.State rep. by Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2.The Commissioner of Police, Chennai Police, Egmore, Chennai-600 008. .. 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, directing the respondents to produce the detenu Pandikumar @ Kumar, son of Pandian, who is now detained in Central Prison, Puzhal, Chennai-66 in pursuance of the detention order passed by the second respondent on 29.11.2007 in Memo No.413/BDFGISSV/2007 before the court, to call for the records and set aside the same and also set the detenu at liberty forthwith. For Petitioner : Mr.S.Swamidoss Manokaran For Respondents: Mr.M.Babumuthumeeran, APP ORDER (The order of the Court was made by M.CHOCKALINGAM, J.) Challenging an order of detention passed by the second respondent in Memo No.413/BDFGISSV/2007, dated 29.11.2007, the petitioner has brought forth this petition for the issue of a writ of habeas corpus. 2.The affidavit filed in support of the petition and the order under challenge are perused. https://hcservices.ecourts.gov.in/hcservices/ 3.Concededly, the detention order under Tami Nadu Act 14 of 1982, terming the detenu, namely Pandikumar @ Kumar, as Goonda, came to be passed by the Detaining Authority on the recommendations made by the Sponsoring Authority, who refers three adverse cases and one ground case as the basis for recommendation. The Detaining Authority, after looking into the materials available, took the view that the activities of the detenu were prejudicial to the maintenance of the public order and there was compelling necessity to detain him under the said provisions in order to prevent him from indulging in such activities in future. Accordingly, the Detention order has been passed, which is the subject matter of challenge before this court. 4.Advancing arguments on behalf of the petitioner, the learned counsel, in his sincere attempt of assailing the order under challenge, would submit that the Detaining Authority has cited three adverse cases; that the alleged incident in Crime No.1096 of 2007 under Section 302 IPC was not cited as adverse case; that it was not considered as the ground incident and under these circumstances, the consideration of materials connecting in Crime No.1096 of 2007 was nothing, but extraneous. The learned counsel would further add that the Detaining Authority, in the ground of detention, considered the case registered in Crime No.1008 of 2007 under Sections 341, 324, 384 and 506(2) IPC in order to invoke the provisions of Act 14 of 1982, whereas a reading of paragraph 4 of the order would make it clear that Crime No.1096 of 2007 was considered as ground case, in which there was imminent possibility of the detenu coming out on bail, which would be indicative of the non application of mind. The learned counsel would further add that while the detention order was passed on 29.11.2007, a representation was made on 22.12.2007, whereby there was a request made for giving a copy of bail application, extension of remand order, etc., which resulted in a reply from the Authority on 09.01.2008. A perusal of the same would clearly reveal that in Crime No.1008 of 2007, the detenu made surrender before the court and there was no application for bail. Apart from that, when copies were supplied, neither bail order nor extension of remand order was also served upon the detenu. This would go to show that there was non application of mind and also denial of sufficient opportunity to the detenu to put forth his case. Hence the detention order is infirm and it has got to be quashed. 5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 6.After looking into the entire materials and consideration of the submissions made, the court is of the considered opinion that it has no option than to quash the order of detention. 7.Concededly, the order of detention came to be passed by the Detaining Authority on 29.11.2007 on the recommendations made by the Sponsoring Authority referring the cases registered against the https://hcservices.ecourts.gov.in/hcservices/ detenu. The Detaining Authority has also pointed out in its order that it has arrived at subjective satisfaction to record a finding that the detenu has got to be termed as Goonda, since his activities were prejudicial to the maintenance of public order. A reading of the order would clearly indicate that Crime No.1008 of 2007 was shown as it was the ground case. But when the order was concluded, the Authority has referred to some other case and stated that there was a real possibility of his coming out on bail. Thus, it would indicate that in the detention order itself, two different cases were stated as the ground cases. The further circumstance is that admittedly, there was a representation made on 22.12.2007, but a reading of the representation would reveal that there was a request made for the supply of the copy of bail order and also the extension of remand order. The request resulted in a reply, dated 09.01.2008, whereby it has been categorically mentioned by the Authority that in Crime No.1008 of 2007, the detenu surrendered before the court and thus, there was no arrest at all and further, there was no application for bail. 8.At this juncture, it is pertinent to point out that all materials available would indicate that on 26.08.2007, the detenu was arrested and he was also remanded to judicial custody on production before the court. Subsequently, he was released on bail and when the bail was in force, he has committed a murder, which has resulted in the registration of the subsequent case. But, the reply was contrary, which is to the effect that he was not arrested, but he surrendered before the court. Such a reply would indicate that it cannot but be termed as non application of mind. Further, in the instant case, all would go to show that the order which was passed by the Authority was not clear as to which was the ground case. Further, the reply given to the representation would clearly make it evident that there was lack of non application of mind and hence the subjective satisfaction arrived at cannot be one, which would be in full to take such a decision. Under these circumstances, the court is of the considered opinion that it is a fit case where the detention order has got to be set aside. Accordingly, it 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 https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009. 2.The Commissioner of Police, Chennai Police, Egmore, Chennai-600 008. HCP NO.17 OF 2008 BV (CO) kk 19/6 https://hcservices.ecourts.gov.in/hcservices/