IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 27.08.2010 CORAM: THE HON'BLE MR.JUSTICE M. CHOCKALINGAM AND THE HON'BLE MR.JUSTICE M. SATHYANARAYANAN H.C.P. No.759 of 2010 Rajeswari ... Petitioner Vs. 1.The State of Tamilnadu, rep. by its Secretary to Government, Home, Prohibition and Excise Department., Fort St. George, Chennai – 600 009. 2. The District Collector and District Magistrate, Kanniyakumari District at Nagercoil, Nagercoil, Kanyakumari District. ... Respondents Petition under Article 226 of the Constitution of India, seeking to issue a writ of Habeas Corpus, to call for the records pertaining to the detenu Mr. Mohan @ Ravikumar @ Mundakkan Mohan son of Mr. Kannan @ Natarajan who is detained under the Tamil Nadu Act 14 of 1982 as a Goonda at Central Prison, Palayamkottai by the second respondent vide his order in P.D. No.04/2010 dated 8.3.2010 on the file of the second respondent herein and to quash the same and direct the respondents herein to produce the body of the detenu Mr.Mohan @ Ravikumar @ Mundakkan Mohan son of Mr. Kannan @ Natarajan aged about 42 years before this Court and set him at liberty. For Petitioner : Mr. M. Sathish Kumar For Respondents : Mr. Babu Muthu Meeran, Additional Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by M. CHOCKALINGAM,J) This petition is brought forth by the wife of the detenu viz. Mohan @ Ravikumar @ Mundakkan Mohan, challenging the order of the second respondent in P.D. No.04/2010 dated 8.3.2010, whereby he was ordered to be detained as a Goonda under the provisions of the Act 14 of 1982. 2. The Court heard the learned counsel appearing for the petitioner and looked into the materials available on record, in particular, the order under challenge. 3. It is not in controversy that pursuant to the recommendation made by the Sponsoring Authority that the detenu is involved in four adverse cases viz. (i) Boothapandy Police Station Crime No.481 of 1998 for the offences under Sections 302, 201 of the Indian Penal Code; (ii) Thisayanvilai Police Station Crime No.358 of 2000 for the offences under Sections 147, 148, 302, 363, 201 read with 149 of the Indian Penal Code; (iii) Eppodumventran police station Crime No.43 of 2006 for the offences under Sections 147, 148, 341, 324, 307, 302 of the Indian Penal Code and Sections 3,4 of E.S. Act and 25(1)(B) of the Indian Arms Act and Section 3 (2)(v) of Prevention of Atrocities Act, 1989; (iv) Vadasery Police Statopm Cr. No.21/2010 for the offences under Sections 341, 324, 307 @ 341, 324, 302 of the Indian Penal Code @ 147, 148, 341, 324, 302, 120(b), 109 read with 34 of the Indian Penal Code and one ground case in Crime No.41 of 2010 registered by Vadasery police station for the offences under Sections 341, 294(b), 387, 506(2) of the Indian Penal Code for the incident that had taken place on 15.01.2010 and the detenu was arrested on 16.01.2010, the Detaining Authority, on scrutiny of materials placed, passed the detention order, after arriving at the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order, which is the subject matter of challenge before this Court. 4. Advancing arguments on behalf of the petitioner, learned counsel raised two points, which, according to him, would be suffice to set aside the order. In the ground case, the detenu has not moved for any bail application so far, which was also brought to the notice of the Detaining Authority as could be evident from paragraph 4 of the detention order, but the Authority has stated that there was a real possibility of the detenu coming out on bail. The Authority, before recording subjective satisfaction that the detenu would indulge in such activities in future, must got sufficient materials to record so. In the instant https://hcservices.ecourts.gov.in/hcservices/ case, the detenu has not even moved for any bail in the ground case, but the Authority has observed that there was a real possibility of the detenu coming out on bail, which is without any basis or material or cogent material. 5. Learned counsel would further add that the detenu is shown as history-sheeted rowdy of Vadasery and number is also given. All sufficient materials in this regard were placed before the Detaining Authority and thus once the particular document is relied upon by the Authority, all the particulars should have been furnished but not done so. Therefore, the detention order under challenge has got to be termed as infirm and the same has got to be set aside. 6. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 7. As could be seen from the available materials, the Detaining Authority has made the order of detention terming the detenu as a Goonda, on the strength of the materials placed before him pertaining to four adverse cases and one ground case as referred to above, and has recorded the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order. 8. It is an admitted position that in the ground case, the detenu has not moved for any bail application so far, which was also brought to the notice of the Detaining Authority as could be evident from paragraph 4 of the detention order, but the Authority has stated as follows:- " 4. I am aware that Thiru Mohan @ Ravikumar @ Mundakkan Mohan was arrested on 16.01.2010 and duly produced before the Judicial Magistrate No.II, Nagercoil on 17.01.2010 and remanded upto 29.01.2010 and lodged in Central Prison, Palayamkottai. His remand period was extended upto 26.02.2010 and further extended upto 12.03.2010. I am also aware that he is in remand in the ground case in Vadasery P.S. Cr. No.41/2010 and so far no bail application was filed on his behalf. But there is a real possibility of his coming out on bail by filing a bail application before the same or higher court and if he comes out on bail in future, he will indulge in such activities which would be prejudicial to the maintenance of public peace and public order. Further recourse to normal criminal law will not have the desired effect of https://hcservices.ecourts.gov.in/hcservices/ effectively preventing him from indulging in such activities which are prejudicial to the maintenance of public order." 9. From the reading of the above, it is clear that the detenu has not even moved for any bail application but the Detaining Authority observed that there was a real possibility of the detenu coming out on bail, which is without any basis or material or cogent material. The Authority, before recording subjective satisfaction that the detenu would indulge in such activities in future, must got sufficient materials to record so. 10. In paragraph 5 of the detention order, it is stated as follows:- " 5. I am aware that Thiru. Mohan @ Ravikumar @ Mundakkan Mohan is a notorious rowdy element who is being watched as a Rowdy in Vadasery Police Station vide Rowdy HS No.163/2000 and he has involved himself in notorious activities like murder, attempt to commit murder, causing injury to human body by assaulting with deadly weapons and threatening the local public by showing weapons with dire consequences and thereby he had acted in a manner prejudicial to the maintenance of public order and peace." 11. In the detention order, it was stated that the detenu was a notorious rowdy element who is being watched as a rowdy in Vadasery Police station vide Rowdy HS No.163/2000. In such circumstances, necessary records pertaining to the same should have been placed, but there is nothing to indicate the same. Contrary to the above it is contended by the learned counsel appearing for the State that it was only a referred document pertaining to Rowdy History Sheet No.163/2000, but not a relied on document. This contention cannot be countenanced since there is a distinction between the relied on document and referred document. 12. Insofar as relied on document is concerned, a document can be stated to have been relied on by the Authority to arrive at and to record the subjective satisfaction whereas in the case of referred document, it is not so, which is simply referred to and that is the main distinction between the relied on document and referred document. A reading of paragraph 5 would clearly indicate that the Authority has recorded that the detenu had acted in the manner prejudicial to the maintenance of public order and peace, which would be quite indicative of the fact that History Sheet Document No.163 was actually relied upon by the Detaining Authority to arrive at a subjective satisfaction and not a referred https://hcservices.ecourts.gov.in/hcservices/ document. Hence, when the document pertaining to History sheet No.163 was not placed before the Detaining Authority for consideration, the Detaining Authority should have applied its mind properly while recording subjective satisfaction and should have asked clarification in this regard, but not done so. Hence, on these grounds, the detention order has got to be set aside. 13. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in P.D. No.04/2010 dated 8.3.2010. The detenu, namely, Mohan @ Ravikumar @ Mundakkan Mohan, who is now confined at Central Prison, Palayamkottai is directed to be set at liberty forthwith unless his custody/detention is required in connection with any other case. ssa. Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Secretary to Government, Home, Prohibition and Excise Department., Fort St. George, Chennai – 600 009. 2. The District Collector and District Magistrate, Kanniyakumari District at Nagercoil, Nagercoil, Kanyakumari District. 3.The Superintendent, Central Prison, Palayamkottai. (In duplicate for communication to Detenu) 4.The Joint Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St George, Chennai 9. 5.The Public Prosecutor, High Court, Madras SJ(CO) SR/23.9.2010 H.C.P. No.759 of 2010 https://hcservices.ecourts.gov.in/hcservices/