Josuva Singh vs The Secretary to Government, Home, Prohibition and Excise Department, The District Collector and District Magistrate and The Inspector of Police

M. Chockalingam, J.—Challenge is made to the order of the 2nd respondent, dated 23.01.2010, whereby the petitioner by name Josuva

Singh, 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 three adverse cases, as detailed below,

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Sl. No. Police Station & Crime Number Provisions of law

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Melapalayam P.S. Crime Number 115/2009 u/s 381 IPC

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Tirunelveli District Crime Branch Crime Under Sections 384 and

No. 78/2009 506(ii) IPC

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Tirunelveli Dist. Crime Branch Cr. No. 01/2010 Under Sections 420 &

506(ii) IPC

and also in the ground case in Crime No. 9/2010, registered u/s 307 IPC on the file of Munneerpallam Police Station for a crime that had taken

place on 05.01.2010, in which he was arrested on the very day and remanded to judicial custody, on scrutiny of the materials placed before him,

the detaining authority, the 2nd 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.

Advancing arguments on behalf of the petitioner, learned Counsel brought to the notice of the Court that when the order of detention came to be

passed on 23.01.2010, the detenu was remand in the ground case and no bail application was either filed or pending before any court of criminal

law and the detaining authority has also mentioned about the same but, even then, the detaining authority has observed that to prevent the detenu

from indulging in such activities which were prejudicial to the maintenance of the public order, there was compelling necessity to detain him, which,

according to the counsel, was only the mere apprehension in the mind of the detaining authority since no material was available before him for

coming to such a conclusion. Added further the learned Counsel, before recording the above subjective satisfaction, the detaining authority has not

satisfied himself as to the imminent or real possibility of the detenu coming out on bail which shows non-application of mind on the part of the

detaining authority. Therefore, according to the learned Counsel, it would suffice to set aside the order of detention under challenge.

The Court heard the learned Additional Public Prosecutor for the State on the above contentions 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.

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 three adverse cases and in one ground case referred to above. It is true that four cases were registered against

the detenu, namely three adverse cases and one ground case. Relevant portion in paragraph 6 of the grounds of detention reads as follows:

I am aware that Thiru. Josuva Singh is in remand in Munneerpallam Police Station crime number 09/2010 and he has not moved any bail

application so far in this case. To restrict him from indulging activities in future, which will be prejudicial to the maintenance of the public order, it is

necessary that he has to be kept in Judicial custody. Further, in 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 the public order. On the materials placed before me, I

am satisfied that Thiru. Josuva Singh is a ""Goonda"" and there is a compelling necessity to detain him, in order to prevent him from indulging in acts

which are prejudicial to the maintenance of public order under the provisions of the Tamilnadu Act 14 of 1982.

From the reading of the above, it would be quite clear that the detaining authority has not recorded his subjective satisfaction as to the imminent

or real possibility of the detenu coming out on bail. It is an admitted position that not even a bail application was filed or pending before any court

of criminal law when the order of detention came to be passed. In such circumstances, the subjective satisfaction recorded by the detaining

authority was without any material, much less cogent material and, therefore, the order which is impugned in the present petition is liable to be set

aside.

Accordingly, the habeas corpus petition is allowed and the impugned order of detention in No. M.H.S. Confdl. No. 08/2010, dated

23.01.2010, passed by the 2nd respondent is quashed. The petitioner/detenu Josuva singh, son of Jeyasingh, is directed to be set at liberty

forthwith, unless his presence, in accordance with law, is required in connection with any other case.