IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 18.12.2009 Coram The Honourable Mr. Justice M.CHOCKALINGAM and The Honourable Mr. Justice V.PERIYA KARUPPIAH H.C.P. No.1865 of 2009 Sathish ... Petitioner ..Vs.. 1. State rep.by Secretary to Government, Home Prohibition and Excise Dept., Secretariat, Chennai-600 009. 2. The Commissioner of Police, Chennai Police, Egmore, Chennai-600 008. ... Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, directing the respondents to produce the detenu Sathish, son of Kamaladoss, aged 27 years, who is now detained in Central Prison, Puzhal, Chennai-66, in pursuance of the detention order passed by the 2nd respondent on 07.10.2009 in Memo No.359/BDFGISSV/2009, before this Court, call for the records, set aside the order and set the detenu at liberty forthwith. For Petitioner : Mr.S.Swamidoss Manokaran For Respondents : Mr.V.R.Balasubramanian, Addl.P.P., for R1 & R2 O R D E R (Order of the Court was made by M.CHOCKALINGAM, J.,) Challenge is made to an order of detention made by the second respondent herein dated 07.10.2009 in Memo No.359/ 2009, whereby the petitioner Sathish was ordered to be detained under Section 3 (1) of the Tamil Nadu Prevention of Dangerous Activities of https://hcservices.ecourts.gov.in/hcservices/ Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act 1982 (Tamil Nadu Act 14 of 1982), terming him as an 'Immoral Traffic Offender' since his activities were prejudicial to the public order and health. 2. The affidavit in support of the petition along with all the materials including the order under challenge are perused. The Court heard the learned Counsel for the petitioner. 3. It is not in controversy that pursuant to the recommendations made by the sponsoring authority that the said Sathish was involved in two averse cases, namely, (i) Anti Vice Squad Police Station Crime No.47/2009 dated 24.06.2009 under Sections 4(1), 5(1)(a) of ITP Act and (ii) Anti Vice Squad Police Station Crime No.63/2009 dated 08.08.2009 under Sections 3(2)(a), 4 (1), 5(1)(a) of ITP Act and apart from that, one ground case was also registered in Crime No.84 of 2009 by the same police under sections 3(2)(a), 4(1), 5(1)(a), 6(1) and 7(1) of ITP Act and the detenu was arrested on 01.10.2009 and on a scrutiny of the materials available, the 2nd respondent, detaining authority, after recording the subjective satisfaction that the activities of the detenu were prejudicial to the public order and health, has made the order under challenge. 4. Assailing the order, the learned counsel for the petitioner would submit that the detention order came to be passed on 07.10.2009 and in para 4 of the grounds of detention, it was observed by the detaining authority that no bail application was filed in Crime No.84 of 2009; but it is contrary to the true state of affairs; that the petitioner filed bail application in Crl.M.P.No.1038 of 2009 before the 17th Metropolitan Magistrate, Saidapet, Chennai, on 02.10.2009 and the same was dismissed on 06.10.2009; but the order of detention came to be passed on 07.10.2009 where it neither referred to the filing of the application nor the order thereon and thus, it would be quite clear that all the materials were not placed before the detaining authority. Added further that it is also an admitted position that totally three cases were registered against him, out of which, two are the adverse cases and one is the ground case, which is also clearly stated in the special report, as available in page 92 of the booklet; but in para 4 of the grounds of detention, the detaining authority has not considered even the other two crime numbers and only it has stated about the last crime number i.e. the ground case namely, Crime No.84 of 2009 and thus, all would clearly indicate the non-application of mind; but on the contrary the detaining authority has stated that there was a real possibility of the petitioner coming out on bail and hence, the order under challenge is infirm, which has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6. After scrutiny of the materials available, the Court is of the considered opinion that the order under challenge has got to be set aside since it is infirm. It is not in controversy that there are two adverse cases, as referred to above, and one ground case in Crime No.84 of 2009 is registered against the petitioner herein and as could be seen from the copy of the dismissal order in Crl.M.P.No.1038 of 2009 dated 06.10.2009 made by the 17th Metropolitan Magistrate, Chennai, that an application was filed for bail on 02.10.2009 in Crl.M.P.No.1038 of 2009 and the same was dismissed on 06.10.2009. Contrarily, paragraph 4 of the order under challenge reads as follows: "I am aware that Thiru Sathish is at remand in Anti Vice Squad Cr.No.84/2009 and has not moved any bail application so far...". Thus, it remains to be stated that even before the passing of detention order, the bail application was filed on 02.10.2009 and the same was dismissed on 06.10.2009 and it would be quite indicative of the fact that all the materials were not placed before the detaining authority before taking into consideration. Equally, when he was involved in three cases, nowhere in para 4 of grounds of detention it was referred to and they have referred to only the last ground case in Crime No.84 of 2009. But the detaining authority has observed that there was a real possibility of the detenu coming out on bail and thus, it could be commented that the said observation was only an expression of an impression which was passing in the mind of the authorities and thus, subjective satisfaction was recorded without real basis or material whatsoever. Under such circumstances, the court is of the considered opinion that that the order suffers from infirmities and it is liable to be set aside. 10. Accordingly, this habeas corpus petition is allowed, setting aside the order of the second respondent. 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. gl https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government, Home Prohibition and Excise Dept., Secretariat, Chennai-600 009. 2. The Joint Secretary (Law and order) Fort St. George, Madras-9 3. The Commissioner of Police, Chennai Police, Egmore, Chennai-600 008. 4. The Superintendent, Central Prison, Puzhal, Chennai. 5. The Public Prosecutor, High Court, Madras. 1 cc to Mr.S. Swamidoss Manokaran, Advocate, Sr. 69629 H.C.P. No.1865 of 2009 KSJ (CO) kk 6/1 https://hcservices.ecourts.gov.in/hcservices/