S. Valli vs The State of Tamil Nadu

P. Sathasivam, J.—The petitioner, who is the wife of the detenu, by name Shanmugham, who is detained as a ''''Goonda"" as contemplated

u/s 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic

Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), by the impugned detention order dated 03.02.2006,

challenges the same in this Petition.

Heard learned Counsel for the petitioner as well as learned Additional Public Prosecutor for the respondents.

At the foremost, learned Counsel for the petitioner, by drawing our attention to eight adverse cases out of which one is u/s 302 and 380 IPC,

has contended that inasmuch as the detaining authority has not adverted to those adverse cases and by merely referring the ground case, which is a

lesser offence i.e. u/s 392 IPC, arrived at a conclusion that there is a real possibility of his coming out on bail by filing a bail application and

according to the learned Counsel, the detaining authority has not applied his mind on all the relevant materials, particularly with reference to the first

adverse case, which is grave in nature (302 IPC).

In the light of the above contention, we have verified the necessary averments in para 5 of the grounds of detention. It is not in dispute that the

detenu had involved in eight adverse cases and the first adverse case said to have taken place on 16.05.2003, relates to offence under Sections

302 and 380 IPC on the file of Mannachanallur Police Station, Tiruchirapalli. It is also not in dispute that though the said occurrence had taken

place on 16.05.2003, the accused therein (detenu) was arrested only on 14.12.2005 i.e. after the ground occurrence. In such circumstances, as

rightly pointed out by the learned Counsel for the petitioner, there must be awareness as to the adverse cases particularly, the first adverse case,

which is for an offence u/s 302 IPC and as to whether there is any possibility of the detenu coming out on bail by filing bail application. As rightly

pointed out, except reference to Crime No. 408 of 2004 on the file of Mannachanallur Police Station, Trichirapally, which relates to the ground

occurrence, the detaining authority has not adverted to other adverse cases, particularly, first adverse case, while mentioning possibility of coming

out on bail.

In this regard, learned Counsel for the petitioner relied on a Division Bench decision of this Court reported in S.N. Hasan Abubucker Vs.

Kottikulam St. Mohideen Pallivasal Therkku Mohindeen Pallivasal, Nirvagi Mutheru Committee and another, Almost in similar circumstances and

among several adverse cases, one relates to offence u/s 302 IPC and after finding that when comparing the offences listed in the ground case, they

are minor in nature and after finding that the detaining authority had not at all adverted to the serious offences of murder covered by other adverse

cases, which amply show the non application of mind on the part of the detaining authority, quashed the detention order.

In (2004) 2 L W Cri 681 (Ameer v. The State of Tamil Nadu and Anr.), in similar circumstances, following the earlier orders of this Court,

quashed the order of detention therein. The following conclusion in para 5 is relevant, which reads as under.

5.The learned Counsel for the petitioner, of course, placing reliance on the decision in Dharmar v. State of Tamil Nadu and Anr. reported in 1995

(1) L W 333, which was followed in Kanniappan v. The District Magistrate Etc., and Anr. reported in 2000(1) L.W. 196 contends that when the

crime referred to in the adverse cases is more grave in nature, there is no imminent possibility of the accused being released on bail, as opined by

the detaining authority and therefore, the order of detention, based on such opinion, is vitiated for non application of mind.

As observed earlier, in our case, the first adverse case relates to an offence u/s 302 IPC. Though the said occurrence is said to have taken place

in the year 2003, admittedly, the accused-detenu was arrested only on 14.12.2005. While considering the imminent possibility, admittedly the

detaining authority has relied on the ground case in Crime No. 408/2005 and there is no reference to the other adverse cases, particularly, the first

adverse case, which relates to u/s 302 IPC. In such circumstances, we are of the view that the above two decisions relied on by the learned

Counsel for the petitioners are applicable to the case on hand and we hold that the order of detention passed only with reference to the ground

case is vitiated for non application of mind.

The learned Additional Public Prosecutor has submitted that though the adverse cases show that the detenu had involved in several cases of

theft and chain snatching, in all those cases, the properties were recovered. It is made clear, we are not underestimating the involvement of the

detenu nor the other offences referred to in the earlier part of the grounds of detention. The respondents are free to proceed in accordance with

law. As rightly pointed out by the learned Counsel for the petitioner while considering the imminent possibility of the detenu being coming out on

bail, we are satisfied that the detaining authority has not adverted to the grave offence u/s 302 and 380 IPC, which relates to first adverse case,

shows non application of mind on his part. In view of the same, by applying the principles laid down in the above referred decisions, we have no

other option except to accept the argument of the learned Counsel appearing for the petitioner. On this ground, we quash the impugned order of

detention.

Accordingly, the Habeas Corpus Petition is allowed and the impugned order of detention is set aside. The detenu is directed to be set at liberty

forthwith from the custody unless he is required in some other case or cause.