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2006 DIGILAW 3070 (MAD)

R. Sakthivel v. The State of Tamilnadu & Another

2006-11-13

J.A.K.SAMPATHKUMAR, P.K.MISRA

body2006
Judgment :- (Habeas Corpus Petition filed under Article 226 of the Constitution of India, to call for the entire records leading to the detention of the petitioner's friend namely Murali @ Muralitharan, Son of Janarthanan under Act, vide detention order dated 12.07.2006 on the file of the second respondent made in CMP.No.13/Goonda/Salem City/2006, quash the same and consequently direct the respondents to produce the body and person of the said detenu before this Hon'ble Court and thereafter set him at liberty from Central Prison, Salem.) P.K. Misra, J. Heard Ms. R. Subadra Devi, learned counsel for the petitioner and Mr. M. Babu Muthu Meeran, learned Additional Public Prosecutor for the respondents. 2. The order of preventive detention is being challenged. The detention is on the ground that the detenu is a goonda within the meaning of Section 3(1) of Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). In the grounds of detention, reference has been made to two adverse cases viz., Annadanapatty Police Station Crime No.2103 of 2004 registered under Sections 147, 148, 341, 324 and 307 I.P.C., wherein the offence was alleged to have committed on 05.09.2004 and Salem Town Police Station Crime No.1049 of 2006 registered under Sections 364-A, 386, 307 and 120-B I.P.C. wherein the offence was alleged to have committed on 12.06.2006. Thereafter, it is alleged that the detenu committed a further offence on 18.06.2006, on the basis of which, Salem Town Police Station registered a case in Crime No.1081 of 2006 under Sections 392 and 397 I.P.C. In paragraph 5 of the detention order, the detaining authority has recorded as under:- "I am aware that Thiru.Murali @ Muralitharan had been remanded to judicial custody in this case on 05.07.06 and that he is still in Central Prison, Salem as a remand prisoner. I am also aware that no bail application has been filed by him or on his behalf so far. But the real possibility of his filing a bail application in near future cannot also be ruled out. I am aware that if he applies for bail, 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. But the real possibility of his filing a bail application in near future cannot also be ruled out. I am aware that if he applies for bail, 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. He had applied bail in previous case and obtained bail. If he is let out on bail and he is let to remain at large, he is very 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 and indulging in such prejudicial activities in future." (emphasis added) 3. In the aforesaid background, the contention of the advocate for the petitioner is to the effect that as a matter of fact, in the previous case viz., Salem Town Police Station Crime No.1049 of 2006, the detenu was still in custody and no bail application had been filed nor the detenu had been released on bail in the said case. However, the detaining authority has wrongly assumed that the detenu "... had applied bail in previous case and obtained bail". It is contended by the learned counsel for the petitioner that this erroneous assumption on the part of the detaining authority has the effect of vitiating the order of detention as the subjective satisfaction of the detaining authority has been based on erroneous materials. 4. The learned Additional Public Prosecutor for the State has submitted that as a matter of fact, in Salem Town Police Station Crime No.1049 of 2006, no bail order had been passed and possibly the detaining authority was referring to the Annadanapatty Police Station Crime No.2103 of 2004. 4. The learned Additional Public Prosecutor for the State has submitted that as a matter of fact, in Salem Town Police Station Crime No.1049 of 2006, no bail order had been passed and possibly the detaining authority was referring to the Annadanapatty Police Station Crime No.2103 of 2004. Even assuming this submission to be correct, it would show non application of mind on the part of the detaining authority inasmuch as the detaining authority has only considered the possibility of the detenu being released in the ground case in Crime No.1081 of 2006, which has been registered under Sections 392 and 397 I.P.C. and there is also non application of mind on the part of the detaining authority relating to the possibility of the detenu being released on bail in the adverse case in Crime No.1049 of 2006 wherein the offence under Section 364-A is life imprisonment, can be considered as equally serious or even more serious crime. In either case, there is non application of mind. 5. In such view of the matter, we are constrained to quash the impugned order of detention notwithstanding the seriousness of the allegations. The detenu shall be released forthwith unless his presence is required in connection with any other case. 6. The Habeas Corpus Petition is allowed.