N. Vasantha vs The Secretary to Government, Home, Prohibition and Excise Department and The Commissioner of Police

M. Chockalingam, J.—Challenge is made to the order of the 2nd respondent, dated 22.01.2010, whereby one Naganathan, husband 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, terming 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,

Sl. No. Police Station & Crime Number Provisions of law 1. B-4 Keeraithurai Police Station Crime Under Sections 341, 307 r/w 34 IPC No. 411/09 2. B-1 Vilakkuthoon (Crime) Police Station Under Sections 397 r/w 397, 506(ii) IPC Crime No. 1709/09 3. B-5 South Gate (Crime) Police Station Crime Under Sections 392 r/w 397, 506(ii) IPC No. 1321/09 and also in the ground case in Crime No. 1681/2009, registered under Sections 392 r/w 397 and 506(ii) IPC on the file of C-2 Subramaniyapuram Police Station for a crime that had taken place on 20.11.2009, in which he was arrested 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 main ground urged by the learned Counsel is that insofar as the ground case and also the 3rd adverse case were concerned, bail applications were filed and they were actually dismissed by the concerned judicial Magistrate on 07.01.2010 and 05.01.2010 and in so far as the 2nd adverse case was concerned, no bail application was filed but, the detaining authority has stated that there was areal possibility of the detenu coming out on bail while bail applications filed in two cases, namely the ground case and the 3rd adverse case, were dismissed and no bail application was filed in the 2nd adverse case and therefore the observation made by the detaining authority that there was real possibility of the detenu coming out on bail was without any basis or material whatsoever and this shows non-application of mind on the part of the detaining authority and hence the detention order has got to be set aside.

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 the sole ground 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 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. A reading of paragraph 5 of the grounds of detention reads as follows:

I am aware that Tr. Naganathan, S/o. Krishnan, is now in remand in Central Prison, Madurai in the ground case in C2 Subramaniapuram (Crime) Police Station Cr. No. 1681/2009 and the adverse cases in B1 Vilakkuthoon (Crie) PS Cr. No. 1709/2009 and B5 South Gate (Crime) PS Cr. No. 1321/2009. I am aware that the bail application filed on his behalf in the said ground case in C2 Subramaniapuram (Crime) Police Station Cr. No. 1681/2009 before the JM No. IV, Madurai in Crl.MP. No. 54/2010 was dismissed o 07.01.2010. Similarly, another bail application filed in the same ground case before the Principal Sessions Judge, Madurai in Crl.MP. No. 139/2010, was dismissed on 20.01.2010. Further, the bail application filed on behalf of him in the adverse case in B5 South Gate (Crime) PS Cr. No. 1321/09, in Crl.M.P. No. 12/2010, was dismissed on 05.01.2010, by the J.M. No. IV, Madurai....

A reading of the above would clearly indicate that the detenu filed bail applications in the ground case Crime No. 1681/2009 and also in the 3rd adverse case Crime No. 1321/2009 in Crl.M.P. No. 54/2010 and in Crl.M.P. No. 12/2010, respectively and both the applications were dismissed on 07.01.2010 and 05.01.2010, respectively, by the Judicial Magistrate No. VI, Madurai. Further, another bail application filed by the detenu in the ground case before the Principal Sessions Judge, Madurai, in Crl.MP. No. 139.2010 was also dismissed on 20.01.2010 and the order of detention came to be passed a day after, that is on 22.01.12010. Despite the dismissal of bail applications by the Judicial Magistrate as well as the Principal Sessions Judge on 20.10.2010, the detaining authority, in the detention order which came to be passed only a day after the dismissal of application, has stated that there was real possibility of the detenu coming out on bail by filing fresh applications. Hence, when the detention order came to be passed no bail application was pending, the observation made by the detaining authority that there was a real possibility of the detenu coming out on bail was without any basis at all. Law requires that to record such a satisfaction, there must be not only material but cogent material available. In the instant case, there was no material, much less cogent material, available for the detaining authority to record such a satisfaction. Under such circumstances, the order impugned in the present petition has got to be set aside.

Accordingly, the habeas corpus petition is allowed and the impugned order of detention in No. 01/BDFGISSV/2010, dated 22.01.2010, passed by the 2nd respondent is quashed. The detenu Naganathan, S/o. Krishnan, is directed to be set at liberty forthwith, unless his presence, in accordance with law, is required in connection with any other case.