IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.07.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.No.200 of 2008 K.Abuthahir @ Sait .. Petitioner -Vs- 1. State rep.by Secretary to Government Home, Prohibition and Excise Dept., Secretariat Chennai 600 009 2. The Commissioner of Police Coimbatore city Coimbatore .. Respondents Petition 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 K.Abuthahir @ Sait, son of late Kareem, who is now detained in Central Prison, Coimbatore in pursuance of the order passed by the second respondent on 11.10.2007 in C.No.66/G/IS/2007 before this Hon'ble Court set aside the order and set the detenu at liberty forthwith. For Petitioner :: Mr.S.Swamidoss Manokaran For Respondents :: Mr.M.Babu Muthu Meeran Addl. Public Prosecutor ORDER (Order of the Court was delivered by D.MURUGESAN, J.) The detenu himself is the petitioner. He has been branded as "Goonda" and detained under the provisions of the Tamil Nadu Act 14 of 1982 by the impugned order of detention dated 11.10.2007 passed by the second respondent. 2. Though several contentions were raised on behalf of the petitioner in challenging the detention order, for the disposal of this petition, suffice for us to refer to the contention of Mr.S.Swamidoss Manokaran, learned counsel for the petitioner. In paragraph-7 of the detention order, the detaining authority has stated that "I am also aware that no bail application has been filed on his behalf so far in this case. I am aware that https://hcservices.ecourts.gov.in/hcservices/ there is a real possibility of filing a bail application in future in this case and in that event there is a real possibility to come out on bail in this case since in similar cases the concerned Court of higher court grants bail after lapse of certain time." 3. According to the learned counsel for the petitioner, there is no bail application filed and in the absence of any other material, the detaining authority ought not to have arrived at the conclusion that there is a possibility of the detenu coming out on bail. In such circumstance, the detention order must be set aside. 4. We have heard Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor for the respondents. 5. The law on this issue is by now well settled. In the judgment in Vazhivittan v. The State of Tamil Nadu reported in 2006-1-LW (Crl.) 24, it has been held that a mere statement that there is a possibility of the detenu getting released in case he moves a bail application would not satisfy the mandatory requirement. Subsequently, in yet another judgment in Chandru v. The Commissioner of Police, Tiruchirappalli city and others reported in 2007 (1) TCJ 766, this Court has held that in the absence of any materials available to sustain the awareness of the detaining authority that the detenu would file a bail application and would come out on bail, the detention order is vitiated. 6. In this case, though there is one material, namely, in the first adverse case the petitioner moved a bail application and the same was ordered after 40 days of his arrest, nevertheless, in the subsequent two adverse cases the petitioner has not moved any bail application and he was let on statutory bail only after the expiry of 60 days since the charge sheets were not filed. Even page-108 of the booklet contains the report dated 9.10.2007, wherein the sponsoring authority has stated that the petitioner has not moved any bail application. The above material would otherwise indicate that there was no attempt made by the petitioner to move any bail application atleast for 20 days, though his remand was extended after the expiry of the first remand. Under these circumstances, we have no other option except to conclude that there are no materials to show that the petitioner would file a bail application and would come out on bail. In the absence of such material, the detaining authority's awareness as to the possibility of the detenu filing a bail application and coming out on bail would be nothing but a total non-application of mind, which would consequently vitiate the order of detention. https://hcservices.ecourts.gov.in/hcservices/ 7. Accordingly, the habeas corpus petition is allowed and the impugned order of detention dated 11.10.2007 passed by the second respondent is set aside. The detenu shall be set at liberty forthwith, unless he is required in connection with any other case. Ss Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Secretary to Government of Tamil Nadu Home, Prohibition and Excise Department Fort St.George Chennai 600 009 2. The Commissioner of Police Coimbatore City Coimbatore 3. The Public Prosecutor High Court, Madras 4. The Superintendent Central Prison, Chennai. 5. The Joint Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St George, Chennai 9. • 1 cc to Mr. S. Swamidoss Monokaran, Advocate SR No. 39323 SCD(CO) SR/5.8.2008 H.C.P.No.200 of 2008 https://hcservices.ecourts.gov.in/hcservices/