M. Shanthi v. The Secretary to Government, Department of Home (Prohibition and Excise), Government of Tamil Nadu, Fort St. George, Chennai
2010-09-13
M.CHOCKALINGAM, SATHYA NARAYANAN
body2010
DigiLaw.ai
Judgment :- M. Chockalingam, J. 1. This Petition is brought forth by the mother of the detenu challenging the order of the Second Respondent made in BDFGISSV No.146/2009 dated 19.11.2009 whereby her son Murali was ordered to be detained as a Goonda under the provisions of Act 14 of 1982. 2. The Affidavit filed in support of the Petition and the grounds of detention are looked into. The Court heard the learned Counsel on either side. 3. It is not in controversy that pursuant to the recommendations made by the Sponsoring Authority that the detenu is involved in six Adverse cases viz., (1) T-1, Ambathur P.S., Cr. No.622/2009 under Sections 379 and 392, IPC (2) T-1 Ambathur P.S., Cr. No.448/2009 under Sections 379 and 392, IPC (3) T-10 Thirumullaivoyal P.S, Cr. No.435/2009 under Sections 379 and 392, IPC (4) T-10 Thirumullaivoyal P.S., Cr. No.458/2009 under Sections 379 and 392, IPC (5) T-2 Ambathur Estate P.S., Cr. No.51S/2009 under Sections 379 and 392, IPC (6) T-3, Korattur P.S., Cr. No.895/2009 under Section 392, IPC and a ground case registered by T-3 Korattur Police Station, Cr. No.896/2009 under Sections 341, 336, 427, 506(ii), 307 and 397, IPC for an occurrence that took place on 27.10.2009 and the detenu was arrested and remanded to judicial custody on 28.10.2010, the Detaining Authority after scrutiny of the materials placed, was of the opinion that the detenu should be detained under the said Act since his activities were prejudicial to the maintenance of public order and hence, passed the order, which is the subject matter of challenge before this Court. 4. Advancing the argument on behalf of the Petitioner, learned Counsel raised two points which according to him is suffice to set aside the order. Firstly, learned Counsel would submit that the order of detention came to be passed on 19.11.2010 and the Sponsoring Authority has shown that he was involved in the last Adverse case registered by T-3 Korattur Police in Crime No.895/2009 and in the Ground case registered by T-3 Korattur Police Station in Crime No.896/2009 under Sections 341, 336, 427, 506(ii), 307 and 397, IPC and was arrested in the last Adverse case and in the Ground case on 28.10.2010 and he was remanded to judicial custody.
The learned Counsel pointing to this fact would urge that, he has not even filed any Bail application in the last Adverse case and in the Ground case. While the matter stood thus, the authority has observed that there is real possibility of the detenu coming out on bail. This was without material muchless cogent, material. Secondly, learned Counsel would submit that when the detenu was arrested, as required by law the intimation should have been given to the close relatives or friends but page No.197 of the Booklet shows that the intimation was given by telegram but the copy of the telegraphic message was not supplied to the detenu. This would clearly indicate that the procedure has not been followed. If to be so, clarification should have been called for by the Detaining Authority but has not done so. Therefore, on these two grounds, the detention order has to be set aside. 5. The Court heard the learned Additional Public Prosecutor on the above contentions. 6. As could be seen from the available materials, the Detaining Authority has made the order of detention terming the detenu as a Goonda, on the strength of the materials placed before him pertaining to six Adverse cases and one Ground case as referred to above, and has recorded the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order. It is an admitted position that the detenu has not filed any Bail Application in the last Adverse case and in the Ground case but the Detaining Authority has observed in paragraph 4 of the detention order as follows: “4. I am aware that Thiru. Murali is in remand in T-3 Korattur Police Station Cr. Nos.895/09 & 896/09. He has not filed any bail Application so far. I am also aware that there is real possibility of his coming out on bail for the above cases by filing a Bail Application before the Court of Sessions or Hon’ble High Court, since in similar cases bails are granted by the above Courts after a lapse of time. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of public order…” From the above paragraph, it is seen that the detention order was passed without proper application of mind.
If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of public order…” From the above paragraph, it is seen that the detention order was passed without proper application of mind. The observation made by the Detaining Authority that there is real possibility of the detenu coming out on bail is only an expression of impression passing in the mind of the authority and it is an inference that too, without any basis or materials, much less cogent materials as the law would require. Further, as rightly pointed out by the learned Counsel for the Petitioner, a copy of the telegraphic message given to the close relative, intimating about the arrest of the Accused, was not supplied to the detenu which would show that the procedure has not been properly followed. Therefore, the Court is of the opinion that on the above grounds, the detention order is infirm and the same has got to be set aside. 7. In the result, this Habeas Corpus Petition is allowed setting aside the order of the Second Respondent, and he detenu is directed to be set at liberty forthwith unless her custody or detention is required in connection with any other case.