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Judgment
M. Chockalingam, J.—Challenge is made to the order of the 1st respondent, dated 25.09.2009, whereby the petitioner''s son by name Kalyani Muthu @ Durai, was ordered to be detained under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982, branding him as a "Goonda''.
The affidavit and the materials filed in support of the petition, in particular the order under challenge, are looked into. The Court heard the learned Counsel for the petitioner.
It is not in controversy that pursuant to the recommendations made by the Sponsoring Authority that the alleged detenu was to be detained under Tamil Nadu Act 14 of 1982, as he was involved in eight adverse cases, as detailed below,
Sl.No. Police Station & Crime Number Provisions of law 1. Anjugrammam P.S. Cr. No. 179/2008 u/s 380 IPC 2. Kanniyakumari P.S. Crime No. 118/2008 Under Sections 457, 380 IPC 3. South Thamaraikulam P.S. Cr. No. 148/2008 u/s 379 IPC 4. Anjugrammam P.S. Cr. No. 220/2008 u/s 379 IPC 5. Anjugrammam P.S. Cr. No. 233/2008 u/s 380 IPC 6. South Thamaraikulam P.S. Crime u/s 379 IPC No.177/2008 7. Anjugrammam P.S.Cr. No. 255/2008 u/s 379 IPC 8. Kanniyakumari P.S.Cr. No. 329/2009 u/s 341, 324, 307 IPC
and also in the ground case in Crime No. 459/2009, registered under Sections 341, 392, 506(ii) IPC on the file of Kanniyakumari Police Station for a crime that had taken place on 04.09.2009, in which he was arrested on the next day and remanded to judicial custody, on scrutiny of the materials placed before him, the detaining authority, the 1st respondent herein, after recording his subjective satisfaction that the activities of the alleged detenu were prejudicial to the maintenance of public order, branded him as a "Goonda" and ordered him to be detained under Tamil Nadu Act, 14 of 1982, which is the subject matter of challenge before the Court.
Learned Counsel for the petitioner raised two grounds which, according to him, are suffice to set aside the order of detention. Firstly, he would submit that insofar as the ground case was concerned, the detenu moved for bail before the Judicial Magistrate No. I, Nagercoil, in Crl. M.P. No. 3332/2009 but, the same was dismissed on 15.09.2009 and thus there was no bail application pending on the date when the detention order came to be passed but, however, the detaining authority has stated that there was a real possibility of the detenu coming out on bail, which was without any material, much less cogent material. Added further the learned Counsel, the detenu was arrested on 05.09.2009 in connection with two cases, namely the 8th adverse case in Crime No. 329/2009 on the file of Kanniyakumari Police Station as well as in the ground case Crime No. 459/2009 on the file of same police station and he moved bail application only in the ground case and the same was dismissed by the Judicial Magistrate, Kanniyakumari No. I, on 15.09.2009 and the same fact was also referred to in the detention order but, insofar as the 8th adverse case was concerned, the detenu has not even filed bail application but the detaining authority has not considered or referred to in his order as to the possibility of the detenu coming out on bail in the 8th adverse case as well and thus the order impugned is defective.
The Court heard the learned Additional Public Prosecutor for the State on the above contention put-forward by the counsel for the petitioner.
After looking into the materials available on record and considering the submissions made on either side, the Court has to necessarily agree with the learned Counsel for the petitioner and the impugned order of detention has got to be set aside on both the grounds urged by him.
It is not in controversy that the detenu was ordered to be detained under Act 14/1982 on the recommendations made by the Sponsoring Authority that he was involved in eight adverse cases and in one ground case referred to above. It is true that nine cases were registered against the detenu, namely eight adverse cases and one ground case. Relevant portion in paragraph 4 of the grounds of detention reads as follows:
I am aware that Thiru Kalyanimuthu @ Durai was arrested on 05.09.2009 and duly produced before the Judicial Magistrate No. I, Nagercoil on the same day and remanded upto 18.09.2009 and lodged in District Jail, Nagercoil. His remand period has been extended upto 01.10.2009. I am also aware that the accused Thiru.Kalyanimuthu @ Durai is in remand in Kanniyakumari P.S. Cr. No. 459/2009 and the bail application moved on his behalf before the court of Judicial Magistrate No. I, Nagercoil in Crl. M.P. No. 3332/2009 on 09.09.2009 was dismissed on 15.09.2009. But there is a real possibility of his coming out on bail by filing a bail application before the same or higher court and if he comes out on bail in future, he will indulge in such activities which would be prejudicial to the maintenance of maintenance of public peace and public order....
From the reading of the above, it would be quite clear that the detenu has moved a bail application in the ground case Crime No. 459/2009 before the Judicial Magistrate No. I, Kanniyakumari, in Crl. M.P. No. 3332/2009 and the same was dismissed on 15.09.2009. The impugned order of detention is dated 25.09.2009 and when the order came to be passed on 25.09.2009, actually there was no bail application pending before any court of criminal law and even then the detaining authority has observed that still there was a real possibility of the detenu coming out bail, which, in the opinion of the court, shows non-application of mind on the part of the detaining authority and the same would vitiate the detention order.
Coming to the 2nd contention raised by the learned Counsel for the petitioner that the detaining authority has not recorded his subjective satisfaction as to the possibility of the detaining authority coming out on bail in the 8th adverse case when he was also in remand in that case, it is true that the detenu was arrested on 05.09.2009 and remanded to judicial custody in the 8th adverse case also and he did not apply for bail at all in that case and he was in judicial custody on the date of detention order but, the detaining authority has not considered this aspect and therefore the observation made by the detaining authority as to the possibility of the detenu coming out on bail and indulge in future activities which would be prejudicial to the maintenance of public order is without any material, much less cogent material, which law would expect in the circumstances and thus the order has got to be set aside.
Accordingly, the habeas corpus petition is allowed and the impugned order of detention in P.D. No. 46/2009, dated 25.09.2009, passed by the 1st respondent is quashed. The detenu Kalyanimuthu @ Durai, son of the petitioner, is directed to be set at liberty forthwith, unless his presence, in accordance with law, is required in connection with any other case.