Logeswari vs The State of Tamil Nadu

M. Chockalingam, J.—This petition is brought forth by the wife of the detenu challenging the order of the second respondent in Memo No.

221/B.D.F.G.I.S.S.V./2010 dated 17.4.2010, whereby her husband Karthik @ Sivakarthik @ Karthikeyan was ordered to be detained as a

Goonda under the provisions of the Act 14 of 1982.

The Court heard the learned Counsel appearing for the petitioner and looked into the materials available on record, in particular, the order under

challenge.

It is not in controversy that pursuant to the recommendation made by the Sponsoring Authority that the detenu is involved in two adverse cases

viz. (i) K.1 Sembium Police Station Crime No. 159/2010 for the offences under Sections 120-B, 363, 342, 307, 397 and 506(2) of the Indian

Penal Code and (ii) K-1 Sembium Police Station Crime No. 168/2010 for the offences under Sections 341, 353, 294(b) and 506(2) of the Indian

Penal Code and one ground case in Crime No. 173 of 2010 registered by K.1 Sembium police station for the offences under Sections 341, 332,

336, 307, 427 and 506(2) of the Indian Penal Code for the incident that had taken place on 26.3.2010 and the detenu was arrested on the same

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.

The only ground urged by the learned Counsel for the petitioner is that actually the petitioner did not file any bail application before any Criminal

Court either in adverse cases or the ground case. But the Detaining Authority has observed in the detention order that there was a real possibility

of detenu coming out on bail and thus, the said observation is without any material much less cogent material, which would vitiate the detention

order.

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

made.

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 two adverse cases and one ground case as referred to above, and has recorded the

subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order.

As rightly pointed out by the learned Counsel appearing for the petitioner, no bail application was filed in either of the cases, but the Detaining

Authority has stated in the detention order as follows:

I am aware that Thiru. Karthik @ Sivakarthik @ Karthikeyan, is in remand in K.1 Sembium Police Station Crime No. 159/2010 and 173/2010

he has not moved any bail so far. The sponsoring authority has stated that the relatives of Thiru. Karthik @ Sivakarthik @ Karthikeyan are taking

action to take him on bail in the above case by filing bail application before the Court. Since 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 21 days. Hence there is real possibility of his coming out on bail by filing bail application in the above case 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.

From the reading of the above, it would clearly indicate the fact that the Authority was aware of the fact that no bail application was filed in

anyone of the cases, but the observation made by the Authority that there was a real possibility of the detenu coming out on bail is 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. But the law

under the circumstances would require that materials must be sufficiently available before recording subjective satisfaction, but it is lacking in the

instant case. This is the only ground raised by the learned Counsel for the petitioner to set aside the detention order. This Court is of the considered

opinion that this ground is sufficient to set aside the detention order.

Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in Memo No.

221/B.D.F.G.I.S.S.V./2010 dated 17.4.2010. The detenu, namely, Karthik @ Sivakarthik @ Karthikeyan, 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.