Karuppayi vs State of Tamil Nadu

M. Chockalingam, J.—Challenge is made to the order of the 2nd respondent, dated 12.02.2010, whereby one Pandi @ Thorattipandi, son

of the petitioner, 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 four adverse cases, as detailed below,

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

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Sivakasi East Police Station Cr. No. 63/2007 Under Sections 341, 324, 506(i)

IPC @ 341, 326, 506(ii) IPC

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Sivakasi Town Police Station Cr. No. 475/08 Under Sections 341, 342, 302

r/w 34 IPC

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Sivakasi East Police Station Cr. No. 704/09 u/s 392 IPC

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Sivakasi East Police Station Cr. No. 559/09 u/s 341, 324,

506 IPC

and also in the ground case in Crime No. 103/2010, registered under Sections 25(1)(b) r/w 4 of Arms Act on the file of Sivakasi East Police

Station for a crime that had taken place on 26.01.2010, 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.

At the time of advancing arguments on behalf of the petitioner, the learned Counsel raised two grounds. Firstly, it is contended that insofar as the

ground case is concerned, no bail application was filed by the detenu and though the same has been mentioned by the detaining authority in

paragraph No. 5 of the grounds of detention, yet the detaining authority has recorded his satisfaction that there was a real possibility of the detenu

coming out on bail which, according to the learned Counsel, the subjective satisfaction so arrived by the detaining authority was not based on any

material and on this ground the detention order is liable to be quashed. Secondly, it is submitted by the learned Counsel that the ground case in

Crime No. 103/2010 came to be registered by the Sivakasi East Police Station pursuant to a raid made by the said police in a lodge where a

number of persons were present, along with the detenu herein and it was actually under Arms Act and materials were recovered only from accused

No. 2 and not from accused No. 1, the detenu herein and since the occurrence is said to have taken place in a lodging house, the question of

disturbance to public order or prejudice to the maintenance of public order would not arise and, therefore, the subjective satisfaction recorded by

the detaining authority that the activities of the detenu were prejudicial to the maintenance of public order was not correct and on this ground also

the impugned order is liable to be set aside.

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

detenu, namely four adverse cases and one ground case. Relevant portion in paragraph 5 of the grounds of detention reads as follows:

I am aware that Thiru. Pandi @ Thorattipandi, has been remanded to judicial custody upto 23.02.2010 in Virudhunagar District Jail in

connection with Sivakasi East Police Station Cr. No. 81032010. He has not moved bail application in this case. The ground case is registered u/s

25(1)(b) r/w 4 of Arms Act. The Ho''ble Judicial Magistrate, Sivakasi has granted bail in the case in Cr. No. 748/09 u/s 25(1)(b) r/w 4 of Arms

Act of Sivakasi East Police Station vide Cr.M.P. No. 5652/09 and Cr.M.P. No. 5653/09, dated 29.09.2009. Therefore there is real possibility of

his coming out on bail in the ground case, by filing bail application before the concerned court or higher court....

A reading of the above would clearly indicate that the detenu did not move any bail application in the ground case and he was in judicial

custody. However, the detaining authority has stated that there was a real possibility of the detenu coming out on bail by filing application and thus

it can be well commented that it was only the apprehension in the mind of the detaining authority and without any basis or material whatsoever. The

law, under such circumstances, requires that before recording subjective satisfaction, sufficient and cogent materials must be available for the

detaining authority to record so. In the instant case, it was not available but, the detaining authority has recorded that there was a real possibility of

the detenu coming out on bail, which would indicate non-application of mind on the part of the detaining authority, which, in the considered opinion

of the Court, would vitiate the order of detention.

In so far as the second contention raised by the learned Counsel for the petitioner is concerned, as rightly contended by the learned Counsel for

the petitioner, pursuant to the raid made by Sivakasi East Police in a lodging house, the ground case in Crime No. 103/2010 was registered, where

six accused have been shown, in which the detenu has been ranked as accused No. 1. Even as per the prosecution case, materials were recovered

only from accused No. 2 and nothing is available to indicate that recovery was made from accused No. 1, the detenu herein. Under such

circumstances, law would require that before recording the subjective satisfaction that the activities of the detenu were prejudicial to the

maintenance of public order, the detaining authority must be satisfied that relevant materials are available before him for arriving such a conclusion.

In the instant case, arms were recovered only from a lodging house. From that point of view, it cannot be said that there was disturbance to public

order or to the maintenance of public order. In such circumstances, it cannot be stated that the detaining authority applied its mind to the facts of

the case to come to the conclusion that the detenu was to be detained under Tamil Nadu Act 14/1982 branding him as a Goonda. Hence, both the

grounds are available to the petitioner for setting aside the order of detention.

Accordingly, the habeas corpus petition is allowed and the impugned order of detention in No. Cr.M.P. No. 05/2010, dated 12.02.2010,

passed by the 2nd respondent is quashed. The detenu Pandi @ Thorattipandi, S/o.Edward Raj, is directed to be set at liberty forthwith, unless his

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