IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.2.2010 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN and THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR H.C.P. No.2145 of 2009 Udhaya (a) Udhaya Kumar S/o Dayalan .. Petitioner Vs. 1.The State of Tamil Nadu Rep. by its Secretary to Govt. Home, Prohibition and Excise Department Fort St. George Chennai - 9 2.The Commissioner of Police Chennai Police Egmore, Chennai-600 008 .. Respondents Prayer : Petition under Article 226 of the Constitution of India, praying for issuance of Writ of Habeas Corpus, calling for the records of the second respondent herein in Memo No.410/BDFGISSV/2009, dated 27.10.09, quash the same and produce the petitioner, namely detenu Udhaya (a) Udhaya Kumar, son of Dayalan, before this Hon'ble court who is presently detained in central prison, Puzhal, Chennai and set him at liberty. For Petitioner :: Mr.S.Senthilvel for M/s.M.Rajavelu For Respondents :: Mr.M.Babu Muthu Meeran, Addl.Public Prosecutor O R D E R (Order of the court was made by P.R.SHIVAKUMAR, J.) The detenu Udhaya (a) Udhaya Kumar son of Dayalan is the petitioner herein. 2. The second respondent herein clamped the order of detention on the detenu holding him to be a goonda, whose presence at large, according to his subjective satisfaction, would be prejudicial to the maintenance of public order. The order was passed by the second respondent in Memo No.410/BDFGISSV/2009 dated https://hcservices.ecourts.gov.in/hcservices/ 27.10.2009. The detaining authority has referred to two adverse cases viz. 1) Cr.No.314/2006 on the file of E-3, Teynampet Police station registered for offences punishable under sections 147, 148, 341, 323, 324 and 506(ii) IPC relating to an occurrence that took place on 27.03.2006 and 2) Cr.No.701/2009 on the file the very same police station registered for offences punishable under sections 341, 324, 323, 384 and 506(ii) IPC and the ground case in Cr.No.738/2009 on the file of E.3, Teynampet police station registered for offences punishable under sections 147, 148, 341, 324, 427, 307, 302 and 506(ii) IPC, to arrive at a conclusion that the detenu was a 'goonda' as per the definition of the term found in section 2(f) of Tamil Nadu Act 14 of 1982 and that an order of detention was necessary under section 3(1) of the Act to prevent him from acting in a manner prejudicial to the maintenance of public order. 3. Among other grounds, the petitioner, has raised the following grounds, which are mainly relied on by the learned counsel for the petitioner: i) There is consideration of external material which resulted in reciting in the grounds of detention that the deceased Mala who took treatment at Government Royapettah Hospital was discharged on 30.09.2009 and subsequently got admitted at Government Hospital at Ward No.201 and died thereafter at 00.40 Hrs on 01.10.2009. ii) The Special Report refers to Cr.No.739/2009 as the case in which the detenu concerned in this habeas corpus petition filed a bail application before the Sessions court and the same was dismissed. The said crime number is neither one of the adverse cases nor the ground case. That being so, the detaining authority should have called for further particulars to clarify whether there was any such case registered against the detenu or that the crime number of the ground case has been wrongly noted in the Special Report. The failure to consider the same will vitiate the order of detention. 4. We have heard the submissions made by Mr.M.Babu Muthu Meeran, the learned Additional Public Prosecutor representing the State on the above said points. 5. The ground case was initially registered for an offence under Section 307 IPC among other offences and the same was later on altered by substituting section 302 IPC for 307 IPC. As per the particulars found in the first information report, a copy of which is available at page 58 of the paper book, the deceased herself, after taking treatment as an out patient at Government Royapettah Hospital went to the police station and lodged the complaint The complaint was lodged at 6.00 a.m on 28.09.2009. The occurrence allegedly took place on 27.09.2009 at 23.00 hours https://hcservices.ecourts.gov.in/hcservices/ (11.00 p.m). The copy of the Accident Register relating to the deceased Mala is available at page 62 of the paper book. It does not state whether she was admitted as an in-patient or treated as an out patient. She was examined by the Medical Officer at Royapettah Government Hospital at 00.30 hours on 28.09.2009. But the same has been inappropriately noted as "27.09.2009 at 12.30 a.m". A consideration of the said document and the first information report will make it clear that she was treated as an out patient and after getting treatment as an out patient, she went to the police station in person and lodged a complaint based on which the ground case was registered. There is no other record available in the paper book to show her admission as an in-patient in the Government Royapettah Hospital, either prior to the registration of the case or subsequent tot he registration of the case. The very recital in the grounds of detention that she was given treatment at Royapettha Government Hospital and discharged, will give an impression that she was treated as an in-patient. The relevant portion in the grounds of detention is not happily worded and the date and time of admission at Government General Hospital, Chennai is not found. We are convinced with the soundness of the contention of the learned counsel for the petitioner that the observation made by the detaining authority that the deceased was treated as an in-patient at Government Royapettah Hospital and discharged on 30.09.2009, is not based on any document and the same reveals that an extraneous material was taken into consideration by the detaining authority. The relevant documents in this regard are also not furnished to the detenu in the paper book. Therefore, the said ground is very much available to the petitioner for challenging the order of detention. 6. As rightly contended by the learned counsel for the petitioner, Cr.No.739/2009 has been mentioned as the case in which the petitioner filed a bail application and the same was dismissed. The said crime number is not one of the adverse cases; nor is it the ground case. We are at a loss to understand the reason why such a Special Report has been obtained in addition to the affidavit of sponsoring authority seeking an order of detention. On perusing the Special Report, we understand that the number of the ground case has been wrongly stated as 739 of 2009 instead of 738 of 2009. When such a mistake is found in the Special Report, which is also relied on by the detaining authority to arrive at a subjective satisfaction regarding the real possibility of the detenu coming out on bail, such a mistake should have been noticed by the detaining authority and either a clarification should have been called for or the detaining authority should have considered the same and found it to be a mistake in noting the number of the ground case. We feel that failure to do so shall also amount to non-application of mind. The said ground is also available to the petitioner for attacking the order of detention. 7. For all the reasons stated above, we hold that the order of detention is vitiated and the same is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 8. In the result, the Habeas Corpus Petition is allowed and the impugned detention order of the second respondent in Memo No.410/BDFGISSV/2009 dated 27.10.09 is set aside. The detenu Udhaya (a) Udhaya Kumar, son of Dayalan is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar asr To 1.The Secretary to Government Home, Prohibition and Excise Department Chennai-600 009 2.The Commissioner of Police Egmore, Chennai-600 008 3.The Public Prosecutor, High Court, Madras. 4. The Superintendent, Central Prison, Puzhul, Chennai-66 + 1 cc to Mr.M.Rajavelu, Advocate, Sr 9374 HCP.No.2145 of 2009 GS (CO) RH (18.2.10) https://hcservices.ecourts.gov.in/hcservices/