IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.12.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH H.C.P.NO.1787 OF 2009 Syed abdul Khadar @ Appu @ Akash .. Petitioner Vs. 1. State rep. By Secretary to Government, Home, Prohibition & Excise Department, Secretariat, Chennai – 600 009. 2. The Commissioner of Police, Chennai City Sub-urban Area, St. Thomas Mount, Chennai- 600 016. .. 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 direct the respondents to produce the detenu Thiru. Syed Abdul Khadar @ Appu Akash, Son of Ahamed Samath, aged 28 years, who is now detained in Central Prison, Puzhal, Chennai – 66 in pursuance of the detention order passed by the 2nd respondent on 16.9.2009 in Memo No.75/BDFGISSV/2009 before this Hon'ble Court and call for the records set aside the order and set the detenu at liberty forthwith. For Petitioner : Mr.S.Swamidoss Manokaran For Respondents : Mr.V.R.Balasubramanian,Addl.P.P. O R D E R (The order of the Court was made by M.CHOCKALINGAM, J.) Invoking the writ jurisdiction of this Court, the petitioner/detenu, Syed Abdul Khadar @ Appu @ Akash has brought forth this application seeking a Writ of Habeas Corpus, challenging the order of detention made against him by the second respondent in No.75/BDFGISSV/2009, dated 16.09.2009, terming him as https://hcservices.ecourts.gov.in/hcservices/ Goonda and detaining him under the Tamil Nadu Act 14 of 1982 and set him at liberty forthwith. 2. The affidavit filed in support of the petition is perused. The Court also perused the order under challenge along with the grounds of detention. The Court heard the learned counsel for the petitioner and also the learned counsel for the State. 3. It is not in controversy that pursuant to the recommendations made by the Sponsoring Authority that the petitioner/detenu was involved in two adverse cases, which were Crime No.35/2008 registered by Anti Vice Squad Police Station, Chennai Police under Sections 3(2)(a), 4(1), 5(1)(a) & 7(1) of ITP Act and Crime No.3/2009 registered by Crime Branch CID Anti Trafficking Cell under Sections 3(2)(a), 4(1), 5(1)(a), 6(1) of ITP act 1956 and also a ground case in Crime No.106/2009 registered by Sub Urban Police, Central Crime Branch under section 3(2)(a), 4(1), 5(1)(a) and 6(1) of I.t.P. Act, the Detaining Authority, on scrutiny of the materials available and after recording subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and peace and hence, he was to be termed as Goonda and further, in order to prevent him from indulging in such activities in future, an order of detention under the Tamil Nadu Act 14 of 1982 was made, which is the subject matter of challenge before this Court. 4. Advancing the arguments on behalf of the petitioner, interalia, the learned counsel for the petitioner/detenu raised two grounds. Firstly, the petitioner moved for bail before the Judicial Magistrate-I, Poonamallee and the same was dismissed on 15.9.2009. The order of detention came to be passed on the very next day i.e., on 16.9.2009. A perusal of paragraph 4 of the order under challenge would indicate the detaining authority was aware of the dismissal of the order but it has neither pointed out the date of dismissal nor the correct number of the application seeking for bail, but on the contrary, the authority has pointed out that there was real possibility of the detenu coming out on bail by filing another bail application before the lower Court or Sessions Court or High Court. In a given case like this, when the bail application was dismissed on the very previous day to the date of detention order, that too, when the authorities are aware of the same, observing that there was real possibility of the detenu coming out on bail, is without any basis or any materials whatsoever. The law would require cogent material to take such a view which is not available in this case. 5. As the second ground, the learned counsel for the petitioner would submit that in so far as the arrest is concerned, the law would mandate to inform about the arrest of the detenu to the close relatives. In the instant case, as could be seen from the booklet, a telegraphic message was given to the wife of the detenu/petitioner but a copy of the telegraphic message was neither placed before the detaining authority nor given to the detenu/ https://hcservices.ecourts.gov.in/hcservices/ petitioner. Under such circumstances, it would not satisfy the mandatory requirement. Hence, on those grounds the detention order has got to be set aside. 6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 7. As stated above, on the strength of the recommendations made by the Sponsoring Authority, the Detaining Authority has made the detention order after recording the subjective satisfaction on scrutiny of the materials available in respect or two adverse cases and one ground case that it is a fit case to detain the petitioner under Act 14 of 1982 since the activities of the petitioner would be prejudicial to public order. 8. On scrutiny of the detention order, it would be indicative of the fact that there are infirmities as pointed out by the learned counsel for the petitioner. Firstly, the petitioner filed an application for bail before the Judicial Magistrate-I, Poonamallee and it came to be dismissed on 15.9.2009 and the order under challenge came to be passed on the very next day i.e., on 16.9.2009. The detaining authority has observed in its order that there was real possibility of the petitioner coming out on bail by filing another bail application before the trial Court or Sessions Court or before the High Court. In the instant case, while bail application was dismissed on 15.9.2009 there could not be real possibility of coming out on bail on the very next day. It is pertinent to point out, the order does not reveal the date of dismissal of the bail application. Thus, it is quite clear that the date of dismissal was not brought to the notice of the authority . Even assuming, it has been brought to the notice the authority, the authority was haste in making the order without any material whatsoever. The law would require cogent material to sustain the order like this which is not available in this case. 9. Further, as pointed out by the learned counsel for the petitioner, it is mandate that immediately after arrest, the reason for arrest should be informed to the close relatives. In the instant case, information was passed on to the wife of the detenu through telegraphic message. But the copy of the telegram was neither placed before the Detaining authority nor given to the detenu. Under such circumstances, duty is cast upon the detaining authority to call for necessary clarification in this regard but he has not done so, which would be indicative of the fact, the non- application of mind on the part of the detaining authority. https://hcservices.ecourts.gov.in/hcservices/ 10. In view of the reasons stated above, the order of detention has got to be set aside. 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 any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsi To 1. The Secretary to Government, Home, Prohibition & Excise Department, Secretariat, Chennai – 600 009. 2. The Commissioner of Police, Chennai City Sub-urban Area, St. Thomas Mount, Chennai- 600 016. 3.The Public Prosecutor, High Court,Madras. 4.The Superintendent, Central Prison, Puzhal, Chennai. 5.The Joint Secretary to Govt. Public(Law & Order) Department, Fort St.George, Chennai-9. +1cc to Mr.S.Swamidoss Manokaran, Advocate Sr 69631 PUR(CO) km/8.1. H.C.P.No.1787 of 2009 https://hcservices.ecourts.gov.in/hcservices/