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2010 Supreme(Mad) 5148
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM & THE HONOURABLE MR. JUSTICE C.S. KARNAN
Soosai @ Balu
Versus
The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu & Others
H.C.P.No. 1949 of 2010
Decided On : 01-12-2010
For the Petitioner:A.S. Bilal, Advocate.
For the Respondent: M. Babu Muthu Meeran, Additional Public.
The validity of a detention order can be challenged if it could not be served on the detenu for a significant period and if there is a lack of basis or material for observations made in the order.
Headnote:
Detention Order - Goonda - The court set aside the detention order on the grounds that it could not be served on the detenu due to his mental disorder for a long period, and the detenu had not moved for bail. The court found that the observation of a real possibility of the detenu coming out on bail was without any basis or material, which led to the decision to set aside the detention order.
Fact of the Case:
The detenu challenged the order of detention as a Goonda under the provisions of Act 14 of 1982, citing that it could not be served on him due to his mental disorder for a long period.
Finding of the Court:
The court set aside the detention order, considering the delay in serving the order on the detenu due to his mental disorder and the lack of bail application by the detenu.
Issues: The main issue was the validity of the detention order due to the delay in serving it on the detenu and the detenu's failure to move for bail.
Ratio Decidendi: The court found that the detention order was invalid due to the delay in serving it on the detenu and the lack of basis or material for the observation of a real possibility of the detenu coming out on bail.
Final Decision: The Habeas Corpus Petition was allowed, and the detention order was set aside, directing the detenu to be set at liberty forthwith unless his custody/detention is required in connection with any other case.
1. This Petition is brought forth by the detenu himself challenging the order of the Second Respondent in C.M.P.No.3/GOONDA/C2/2010 dated 18.2.2010, whereby he was ordered to be detained as a Goonda under the provisions of the Act 14 of 1982.
2. The Court heard the learned Counsel appearing for the Petitioner and looked into the materials available on record, in particular, the order under challenge.
3. It is not in controversy that pursuant to the recommendation made by the Sponsoring Authority that the detenu is involved in three Adverse cases viz. (i) Crime No.479 of 2006 registered by Karippatty Police Station for the offences under Sections 307 and 326 of the Indian Penal Code; (ii) Crime No.628 of 2009 registered by Karippatty Police Station for the offences under Sections 294 (b), 324 and 506(ii) of the Indian Penal Code; (iii) Crime No.792 of 2009 registered by Karippatty Police Station for the offences under Sections 147, 48, 341, 302 and 506 (ii) of the Indian Penal Code and one Ground case in Crime No.887 of 2009 registered by Karippatty Police Station for the offences under Sections 332, 307, 506 (ii) of the Indian Penal Code for the incident that taken place on 25.11.2009 and the detenu was arrested on the very 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.
4. The only contention put forth by the learned Counsel for the Petitioner, which, according to him was strong enough to set aside the detention order is that the order of detention came to be passed on 18.2.2010, but the same could not be served on the detenu because of his mental disorder for a period of eight months. An endorsement has been made by the Jail authorities that with great difficulties, it was served upon the detenu by substituted service. In the Second and Third adverse cases and also in the Ground case, the detenu has not moved for any bail. Apart from this, the Second Adverse case is one for murder. But the Authority has mechanically stated in the order that there is a real possibility of the detenu coming out on bail. The said observation is without any basis or material much less cogent material, which the law would require.
5. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
6. 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 three 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.
7. It is an admitted position that the order of detention came to be passed on 18.2.2010. As rightly pointed out by the learned Counsel for the Petitioner, the order of detention passed on 18.2.2010 could not be served on the detenu for long time in view of his mental disorder. Under the circumstances, it is also an admitted position that the detenu has not moved for any bail. He was shown as arrested in Second and Third Adverse cases and the Ground case. Apart from this, the Second Adverse case is one for murder. Ordinarily, bail would not be granted before completion of investigation. The Ground case was also registered for the offence under Section 307 of the Indian Penal Code. He has not moved for bail. But the Authority has mechanically stated in paragraph 5 of the order that there is a real possibility of the detenu coming out on bail. The said observation is without any basis or material much less cogent material, which the law would require. This ground, in the considered opinion of the Court, is suffice to set aside the order of d
