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2010 DIGILAW 4660 (MAD)

A. Siva v. The Secretary to Government

2010-10-22

C.S.KARNAN, M.CHOCKALINGAM

body2010
Judgment :- (Order of the Court was made by M. CHOCKALINGAM,J) 1. This petition is brought forth by the detenu himself challenging the order of the second respondent in Memo No.202/BDFGISSV/2010 dated 12.4.2010, whereby he was ordered to be detained as a Goonda under the provisions of the Act 14 of 1982. 2. The Court heard the learned counsel appearing for the petitioner and looked into the materials available on record, in particular, the order under challenge. 3. It is not in controversy that pursuant to the recommendation made by the Sponsoring Authority that the detenu is involved in three adverse cases viz. (i) Crime No.89 of 2010 registered by R-1 Mambalam Police Station for the offence under Section 379 of the Indian Penal Code; (ii) Crime No.97 of 2010 registered by R-1 Mambalam Police Station for the offence under Section 379 of the Indian Penal Code; (iii) Crime No.341 of 2010 registered by E-3 Teynampet Police Station for the offence under Section 392 of the Indian Penal Code and one ground case in Crime No.349 of 2010 registered by E-3 Teynampet Police station for the offences under Sections 341, 324, 336, 427, 307 and 506(ii) of the Indian Penal Code for the incident that had taken place on 30.3.2010 and the detenu was arrested on the very day, the Detaining Authority, on scrutiny of materials placed, passed the detention order, after arriving at the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order, which is the subject matter of challenge before this Court. 4. The only contention put forth by the learned counsel for the petitioner is that the detenu has not filed any bail application in the third adverse case and the ground case. But the Authority has observed that there was a real possibility of the detenu coming out on bail. The said observation is without any basis. 5. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6. But the Authority has observed that there was a real possibility of the detenu coming out on bail. The said observation is without any basis. 5. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 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 three adverse cases and one ground case as referred to above and has recorded its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order. 7. It is an admitted position that the detenu has not filed any bail application in the third adverse case and the ground case. But the Authority has observed in paragraph 4 of the detention order as follows:- "4. I am aware that Thiru. Siva is in remand in E-3 Teynampet Police Station Crime Nos.341/2010 and 349/2010 and he has not moved any bail application for E-3 Teynampet Police Station Crime Nos.341/2010 and 349/2010 so far. The sponsoring authority has stated that the relatives of Thiru. Siva are taking action to take him on bail by filing bail application for E-3 Teynampet Police Station Crime Nos.341/2010 and 349/2010 before the appropriate Court and since in a similar case registered under Section 392 IPC in D-6 Anna Square Police Station Crime No.109/2009 bail was granted by the XIII Metropolitan Magistrate Court, Egmore, Chennai in Crl.M.P. No.739/2009. Similarly, in a case registered under Sections 341 and 307 IPC at E-2 Royapettah police Station Cr.No.382/2009, bail was granted in Crl.M.P. No.5266/2009 by the Court of Principal Sessions, Chennai, within 20 days. Hence, there is a real possibility of his coming out on bail by filing bail application for E-3 Teynampet Police Station Crime Nos.341/2010 and 349/2010 before the appropriate Court. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of public order. Further, the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of public order. On the materials placed before me, I am fully satisfied that Thiru. Further, the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of public order. On the materials placed before me, I am fully satisfied that Thiru. Siva is also a Goonda and that there is a compelling necessity to detain him in order to prevent him from involving in such further activities in future which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14 of 1982." 8. From the above, it is quite clear that the observation of the Detaining Authority is without any material. It is only an expression of the impression in the mind of the Authority and only an inference and that too without any basis or materials much less cogent materials as the law would require. On this ground, the order of detention has got to be set aside. 9. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in Memo No.202/BDFGISSV/2010 dated 12.4.2010. The detenu, namely, A.Siva, who is now confined at Central Prison, Puzhal, Chennai is directed to be set at liberty forthwith unless his custody/detention is required in connection with any other case.