Anjalakshmi vs The State of Tamil Nadu

M. Chockalingam, J.—The petitioner is the mother of the detenu Kumaresan. She challenges an order of the second respondent in Cr.M.P.

No. 9 of 2010 dated 23.3.2010, whereby her son was ordered to be detained under Act 14/82 branding him as a Goonda.

The affidavit in support of the petition and the grounds of detention are looked into. The Court heard the learned Counsel on either side.

Pursuant to the recommendations made by the sponsoring authority that the detenu is involved in two adverse cases namely (1) Andimadam PS

Cr. No. 287/2009 u/s 397 IPC and (2) Andimadam PS Cr. No. 457/2009 under Sections 294(b), 307 and 324 IPC and also in one ground case

registered by Andimadam PS in Crime No. 09/2010 under Sections 392, 397 and 506(II) IPC for an occurrence that took place on 10.1.2010,

and he was arrested on the very day and remanded, the detaining authority after scrutiny of the materials placed, formed an opinion that the detenu

should be detained under Act 14/82 and hence passed the order which is under challenge.

The learned Counsel advancing arguments on behalf of the petitioner put forth two grounds which, according to him, would suffice to set aside

the order. According to him, bail applications were filed in ground case in Crime No. 09/2010 and also in the second adverse case in Crime No.

457/2009 before this Court, and they were dismissed by an order dated 4.3.2010, and the impugned order came to be passed on 23.3.2010, on

which date actually there was no bail application pending before this Court or any Court of criminal law; but the authority has stated that there was

a real possibility of the detenu coming out on bail, and this was without any material, much less cogent material. Secondly, there was a pre-

detention representation made on 17.2.2010, and it was not disposed of at all, and hence the non-consideration and non-disposal of the pre-

detention representation would also be a ground to set aside the order.

The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.

It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the detenu was involved in two adverse cases

and one ground case as referred to above, the detaining authority after recording its subjective satisfaction that the activities of the detenu were

prejudicial to the maintenance of public order, has made the order of detention which is the subject matter of challenge before this Court. As could

be seen from the order, it is very quite clear that both the applications for bail in Crime No. 09/2010, the ground case, and in Crime No.

457/2009, the second adverse case, came up for consideration before this Court and were also dismissed on 4.3.2010. The order under challenge

came to be passed on 23.3.2010. Paragraph 5 of the order reads as follows:

I am aware that Thiru. Kumaresan is in judicial custody in Andimadam P.S. in Cr. No. 457/2009 and Cr. No. 09/2010 and has moved bail

application before the District and Sessions Judge, Perambalur in Cr.M.P. No. 108/2010 and Cr.M.P. No. 109/2010 and they were dismissed on

27.01.2010. He filed another bail application before the Honourable High Court at Madras in Crmp No. 3092/2010, 3101/2010 and the same

was dismissed on 04.03.2010. I am also aware there is a real possibility of his coming out on bail by filing another bail application for the above

case, since in similar cases, bails are granted by the concerned Court or Higher Courts after lapse of time.

In the case on hand, it could be seen that though the authority was well aware that the bail application was not actually pending before any Court

of Criminal law, the observation made by the authority that there was a real possibility of the detenu coming out on bail cannot but be an

expression of the impression which was passing in the mind of the authority or an inference that was made. But it is not suffice. There was an

occasion for this Court to consider such a situation. A Division Bench of this Court has held in a case reported in 2008 (1) MWN (CR.) 158 S.

Venugopal v. The Commissioner of Police and Anr. as follows:

Keeping in view the ratio of the aforesaid decisions and more particularly the opinion expressed by the Full Bench as well as the decision of the

Supreme Court in 2006 (1) SCC (CRI) 593 (cited supra) notwithstanding the seriousness of the allegations against the detenu, particularly relating

to the ground case, we are constrained to come to the conclusion that the observation of the Detaining Authority ""that there is a real possibility of

his coming out on bail by filing another Application before the same Court or Higher Courts since in similar cases bails are granted by the same

Court or Higher Court"" is mere ipse dixit of the Detaining Authority without any cogent material. The offences allegedly committed by the detenu

and the background in which such offences were allegedly committed clearly indicate that the offences are not of a routine nature wherein one can

assume that bail would be granted almost as a matter of course either by the Sessions Judge or by the High Court.

In the absence of any material, much less cogent material which the law would require, it can be well stated that the order of detention becomes

defective and infirm, and hence it has got to be set aside.

Insofar as the second contention, this Court is unable to see force in the same for the simple reason that it is true that a pre-detention

representation was made on 17.2.2010. The same was received and disposed of on 23.3.2010 when the order came to be passed. At this

juncture, the learned Counsel for the petitioner raised a doubt whether it could have been considered and disposed of on the very day when the

representation was received and the order came to be passed. But, this contention cannot be accepted. On perusal of the document, it would be

quite clear that the representation was received on 23.3.2010, and the order came to be passed on the very day, and the rejection order was also

served upon the detenu who is in prison on 24.3.2010. It would be quite indicative of the fact that the representation has actually been considered

and disposed of rejecting the same. Hence the second ground put forth has no force at all, and accordingly, it is rejected. But, on the first ground,

this Court is of the considered opinion that the order of detention is liable to be set aside.

In the result, this habeas corpus petition is allowed setting aside the order of the second respondent, and the detenu is directed to be set at

liberty forthwith unless his presence is required in connection with any other case.