IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.06.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.NO.65 OF 2008 Pushpa .. Petitioner Vs. 1.State represented by The Secretary to Government, Department of Prohibition and Excise, Fort St. George, Chennai-600 009. 2.The District Magistrate and District Collector, Salem District, Salem .. Respondents This habeas corpus petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of habeas corpus to call for the records in C.M.P.No.17/Goonda/C2/2007, dated 30.12.2007 on the file of the second respondent herein and quash the same as illegal and to direct the respondents to produce the detenu Amirtharaj, son of Venkatachalam before the court and set him at liberty. For Petitioner : Mr.R.Sankarasubbu For Respondents: Mr.M.Babu Muthu Meeran, APP - - - - ORDER (The order of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of the second respondent made in C.M.P.No.17/Goonda/C2/2007, dated 30.12.2007, terming the son of the petitioner, namely Amirtharaj, as Goonda. 2.The affidavit filed in support of the petition and the order under challenge are perused. https://hcservices.ecourts.gov.in/hcservices/ 3.The Sponsoring Authority made a recommendation, whereby it placed the materials pertaining to 4 adverse cases in Crime Nos.63/2006, 66/2006 registered by Kolathur Police and Crime Nos.222/07 and 360/2007 registered by Karumalaikoodal police under different provisions of IPC and also the material pertaining to a ground case, to the Detaining Authority. The Detaining Authority, after looking into all the materials placed before him, was of the opinion that he arrived at subjective satisfaction on the materials placed that one Amirtharaj was to be termed as Goonda in view of his activities, which were prejudicial to the maintenance of public order and peace and also in order to prevent him from indulging in such activities in future, a necessity arose to detain him under the provisions of the Tamil Nadu Act 14 of 1982 and hence he has made an order of detention, which is the subject matter of challenge before this Court. 4.Advancing arguments on behalf of the petitioner, the learned counsel in his sincere attempt of assailing the order under challenge, has raised two points. Firstly, the order under challenge came to be passed on 30.12.2007, terming the detenu Amirtharaj as Goonda. A representation was made by the petitioner on 6.2.2008 and the order of rejection of the representation was made on 08.04.2008 and the same was served on the petitioner on 12.04.2008 and thus, there was an inordinate delay. Secondly, the detenu was arrested and produced before the concerned Judicial Magistrate in Crime No.360 of 2007, which was the last adverse case and in Crime No.361 of 2007, a ground case on on 01.12.2007. Bail applications were also made in both the cases and both the applications were dismissed. When the materials were placed, the Detaining Authority, after looking into the same, has referred to the bail application and the dismissal order that was made pertaining to the case in Crime No.361 of 2007, but he has not adverted to the other case in Crime No.360 of 2007, in which also order was passed on the very day and thus, it would clearly indicate the non application of mind of the Detaining Authority and hence, the order of detention has got to be set aside. 5.Contrary to the above, the learned counsel for the State placed all the dates, on which the representation was made, the consideration of the same, the order of rejection and also the service of the same. Placing reliance on those particulars, the learned counsel for the State would contend that there was no delay at all. So far as the second contention was concerned, it is true that the Detaining Authority has not taken into consideration the last adverse case, namely Crime No.360 of 2007, since it was only a case registered under Section 505(i)(b) IPC and under these circumstances, the non consideration of the same or not referring the dismissal of the bail application in the order would not in any way cause prejudice to the interest of the detenu and hence the habeas corpus petition has got to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 6.The Court has paid its anxious consideration on the submissions made and looked into the materials available. 7.So far as the first ground of delay is concerned, the Court has to necessarily disagree with the petitioner's side. All the particulars placed before the court are looked into and this Court is unable to see any delay whatsoever and hence in the absence of any delay much less unreasonable delay, no question of considering that contention put forth by the petitioner's side would arise and therefore, the first ground has got to be rejected. 8.So far as the second ground is concerned, this Court is able to see sufficient force. On the strength of 4 adverse cases and one ground case, the Sponsoring Authority has made a recommendation and the Detaining Authority has also passed the order under challenge, terming the detenu as Goonda. It is not in controversy that the said detenu, on arrest, was produced before the court on 01.12.2007 in respect of both crime Nos.360 and 361 of 2007 and he was remanded to custody. Both bail applications were filed and the same were dismissed on the very day. When the materials were placed before the Detaining Authority, it should have adverted to all the materials available. Contrarily, the Detaining Authority, in paragraph 5 of its order, has stated as follows: "5)I am aware that Thiru.Amirtharaj had been remanded to judicial custody in this case and that he is still in Central Prison, Salem as a remand prisoner. The bail application filed by Tr.Amirtharaj for the ground case was dismissed on 13.12.2007 by the Principal Sessions Judge, Salem in C.M.P.No.5276/2007. But the real possibility of his filing a bail application in near future cannot also be ruled out. Because, he had filed bail applications for the first and second adverse cases and got bail. I am aware that if he applies for bail again, there is a real possibility to be released on bail, because in similar cases, bail is granted by the same Court or the higher Court after efflux of certain time. If he is let out on bail and he is let to remain at large, he is likely to indulge in such prejudicial activities in future as well. Therefore there is a compelling necessity to pass the order of detention with a view to preventing him from indulging in such prejudicial activities in future. Further, recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in activities prejudicial to the maintenance of public order and public peace. On the consideration of the records placed before me, I am satisfied that Thiru. Amirtharaj is a "GOONDA" and that there is a compelling necessity to keep him under detention as per the provisions of section 2(f) of Tamil Nadu Act 14 of https://hcservices.ecourts.gov.in/hcservices/ 1982 in order to prevent him from indulging in activities which are prejudicial to the maintenance of public order and public peace." 9.A reading of the paragraph 5 would clearly reveal that the Detaining Authority had taken into consideration only the bail application filed in C.M.P.No.5276 of 2007 before the Principal Sessions Judge, Salem on 13.12.2007, pertaining to the ground case in Crime No.361 of 2007 and it has not adverted to the attention of the dismissal of the bail application in the other case in Crime No.360 of 2007, which was the last adverse case. In the opinion of the Court, it can be termed only as non application of mind. The Court had an occasion to consider such a situation in H.C.P.No.466 of 2004 and had taken a view that it would be nothing, but could be considered only as non application of mind and it has caused prejudice to the interest of the detenu. Therefore, in the instant case, the Court is of the considered opinion that it could be termed only as non application of mind and hence it would be sufficient to quash the order of detention. 10.Accordingly, the detention order is set aside. The Habeas Corpus petition is allowed. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with some other case. Vvk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Secretary to Government, State of Tamil Nadu, Department of Prohibition and Excise, Fort St. George, Chennai-600 009. 2.The District Magistrate and District Collector, Salem District, Salem. 3.The Public Prosecutor, High Court, Maras. https://hcservices.ecourts.gov.in/hcservices/ 4. The Superintendent Central Prison, Salem (In duplicate for Communication tio the detenu) 5. The Joint Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Fort St George, Chennai 9. BV(CO) SR/25.6.2008 H.C.P.NO.65 OF 2008 https://hcservices.ecourts.gov.in/hcservices/