IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:18.06.2008 CORAM: THE HON'BLE MR.JUSTICE M.CHOCKALINGAM AND THE HON'BLE MR.JUSTICE S.PALANIVELU HCP.NO.126 OF 2008 B.Nagaraj ...Petitioner Vs. 1.The State of Tamil Nadu, rep. by its Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai 600 009. 2. The Commissioner of Police, Office of the Police Commissioner, Egmore, Chennai 600 008. ..Respondents Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus calling for the records relating to the petitioner's detention order under the Tamil nadu Act 14 of 1982 made in Memo No.419/BDFGISSV/2007 dated 30.11.2007 on the file of 2nd respondent herein and quash the same and consequently to direct the respondents to produce the body of the detenu Nagaraj S/o Bakthavatchalam, who has been confined in Central Prison, Puzhal, Chennai before this Court and get him at liberty further within the interest of justice. For petitioner : Mr.G.Natarajan For Respondents : Mr.M.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) Challenge is made to the order of the second respondent dated 30.11.2007 whereby the petitioner was termed as a Goonda and an order of detention under Act 14 of 1982 was made. 2. Affidavit filed in support of the petition is perused and also the order under challenge is perused. The Court heard the learned counsel for the petitioner/detenu as well as learned Additional Public Prosecutor for respondents. 3. Admittedly, the second respondent/detaining authority on the recommendations made by the sponsoring authority whereby the particulars pertaining to five adverse cases (1)Crime No.1057 under Section 457 and 380 IPC and Crime No.787 of 2006 under Section 380 IPC of M5 Ennore Police Station and Crime No.107 of 2007 under Section 379 IPC of C3 Seven Wells Police Station and (4) Crime No.110/2007 under Section 379 IPC and (5) Crime No.650 of 2007 under Section 457 and 380 of IPC of M5 Ennore Police Station and also a ground case in Crime No.653 of 2007, recorded a finding that the detaining authority has arrived at a subjective satisfaction that the activities of the detention were prejudicial to the public order and peace and hence he was to be termed as Goonda and apart from that in order to prevent him from indulging in such activities in future, a necessity arose and the detention has been made under Act 14 of 1982 and hence made the order under challenge. 4. Advancing his arguments on behalf of the petitioner, learned counsel for the petitioner made the following submissions: The detention authority has made the order of detention on the strength of five adverse cases and one ground case, the ground case was shown as Crime No.653 of 2007 where the said case was registered at about 11 a.m. and the Mahazar for recovery at one place as found in Page 87 is shown as near bus stand at the time of arrest and next page at page 88 would refer to as near the railway line and thus both these Mahazar for recovery of M.O.s were found to be different for the same crime number,and if to be so, clarification should have been called for, but the detaining authority has failed to do so. The arrest was made on 11.11.2007 at 15.30 hours ,but when he was produced before the Court, it was shown as if he was arrested on 12.11.2007, that the discrepancy in the material particulars was noticed and hence the detaining authority should have called for clarification for that reference also. Since he has called for clarification in that regard, it would clearly speak about the non-application of mind. https://hcservices.ecourts.gov.in/hcservices/ 5. Learned counsel placed reliance on the decision of the Apex Court reported in 2003(1) CTC 382 in DARPAN KUMAR SHARMA 2 DHARBAN KUMAR SHARMA VS. STATE OF TAMIL NADU AND OTHERS would submit that before invoking the provisions of the Prevention of Detention Act, as one in the case on hand, the detaining authority should have satisfied that the detenu has committed acts which were affected adversely or likely to affect adversely the maintenance of public order . In the instant case, all the cases have registered as to robbery and there is no question of creation of any scare. Hence there is no necessity for passing the order under challenge and it has got to be set aside. 6. The Court heard the learned Additional Public prosecutor on the above contentions and looked into the materials available. 7. It is not in controversy that the order under challenge came to be passed by the detaining authority on a recommendation made by the sponsoring authority. The detaining authority has also recorded a subjective satisfaction after making careful scrutiny of the materials available. The adverse cases were five in number apart from the ground case. The authority after perusing all the materials has recorded a subjective satisfaction. In a case like this, before the authority makes an order of preventive detention, it must arrive at a subjective satisfaction on the question whether the activities of the detenu were prejudicial to the public order and peace. The order under challenge and the ground on which the order came to be passed are verified by this Court which would clearly reveal that the act of committing theft and apart from that particulars are given at the time of occurrence was committed and when the persons intervened, he has threatened and criminally intimidated, having a knife in hand and also threw soda water bottle and hurled the same on the road and create panic in public place and thus the circumstances attendant would clearly indicate that he has acted prejudicial to the maintenance of public order and peace. The decision relied on by the learned counsel for the petitioner referred to above cannot be applied to the present facts of the case. It was the case where Solitary Act of committing robbery was actually noticed. Their Lordships of Supreme Court held that there was no act which were affect adversely or is likely to affect adversely were noticed, but, not in the instant case. As pointed out earlier, it would clearly reveal that the activities of the detenu were prejudicial to the public order. Under such circumstances, the authority is perfectly correct in invoking the provisions and passed an order under challenge. In so far as the other two points raised by the learned counsel for the petitioner as referred to above, when perused, this Court is unable to see any merit whatsoever. In so far as the recovery of M.Os. were concerned, for the first time from the place of occurrence, it is shown as near the bus stand, it is first recovery Mahazar and in so far as the second recovery mahazar was https://hcservices.ecourts.gov.in/hcservices/ concerned, it was only pursuant to the confession statement made and the second recovery was made near the railway line,. Under such circumstances, it did not create discrepancy and in so far as the next ground was concerned, it has been rightly stated that the occurrence has taken place on 11.11.2007 and he was arrested at 15.30 hours and produced before the Court which did not leave doubt in the matter enabling to see any merit in the application. Therefore, the Habeas Corpus Petition is disposed of accordingly. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar VJY To 1.The Secretary to Government, Prohibition and Excise Department,Home, Fort St.George, Chennai 600 009. 2. The Commissioner of Police, Office of the Police Commissioner, Egmore, Chennai 600 008. 3. The Superintendent, Central Prison, Puzhal, Chennai. 4. The Joint Secretary to Government, Public (law & Order) Fort St. George, Chennai-9. 5. The Public Prosecutor, High Court, Madras. +1 cc To Mr.G.Natarajan, Advocate, SR.30760 HCP.NO.126 of 2008 ck [co] gkg/2.7 https://hcservices.ecourts.gov.in/hcservices/