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2010 Supreme(Mad) 4952
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM & THE HONOURABLE MR. JUSTICE C.S. KARNAN
Arunagiri
Versus
The State of Tamilnadu Rep. By its Secretary to Government & Another
H.C.P.No.1229 of 2010
Decided On : 16-11-2010
For the Petitioner:M. Rajavelu, Advocate.
For the Respondents: Babu Muthu Meeran, Additional Public Prosecutor.
The detaining authority must have a basis or material for its observations and must consider pre-detention representations in order to justify an order of detention.
Headnote:
Detention - Public Order - The court set aside the order of detention passed by the second respondent due to lack of basis or material for the detaining authority's observation of the possibility of the detenu coming out on bail and failure to consider the pre-detention representation.
Fact of the Case:
The petitioner challenged an order of detention branding him as a Goonda based on his involvement in adverse cases. The detaining authority recorded subjective satisfaction that the detenu's activities were prejudicial to public order.
Finding of the Court:
The court found that the detaining authority's observation of the possibility of the detenu coming out on bail lacked basis or material, and the pre-detention representation was not considered, leading to the setting aside of the order of detention.
Issues: The issues raised included the detenu's arrest in adverse cases, the authority's observation of the possibility of the detenu coming out on bail, and the failure to consider the pre-detention representation.
Ratio Decidendi: The detaining authority's observation of the possibility of the detenu coming out on bail without basis or material and the failure to consider the pre-detention representation were sufficient grounds to set aside the order of detention.
Final Decision: The habeas corpus petition was allowed, setting aside the order of detention passed by the second respondent, and the detenu was directed to be set at liberty forthwith unless his custody is required in connection with any other case.
(M.CHOCKALINGAM, J.)
1. This petition challenges an order of the second respondent dated 27.5.2010, whereby the petitioner himself was ordered to be detained under Act 14/82 branding him as a Goonda.
2. All the materials available and in particular, the order under challenge, are perused. The Court heard the learned Counsel for the petitioner.
3. It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the said detenu was involved in three adverse cases namely (1) E1 Mylapore PS Cr.No.579/2006 under Sections 147, 148, 324, 427, 307 and 506(ii) IPC;
(2) E1 Mylapore PS Cr.No.475/2010 under Sections 341, 324, 307 and 506(2) IPC and
(3) E1 Mylapore PS Cr.No.702/2010 under Sections 147, 341 and 325 IPC, and also in a ground case registered by E1 Mylapore PS in Crime No.719/2010 under Sections 341, 384, 307, 427, 336 and 506(ii) IPC for an occurrence that had taken place on 18.5.2010, and he was arrested on 19.5.2010, and on scrutiny of the entire materials, the detaining authority namely the second respondent herein, has made the order under challenge after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order.
4. The learned Counsel for the petitioner raised the following grounds:
(i) The detenu was arrested only in the ground case in Crime No.719/2010 on 19.5.2010. He was neither arrested nor shown arrested in any one of the adverse cases. He has also not moved for bail before any Court of criminal law. But the authority has stated in paragraph 4 of the grounds of detention that there was a real possibility of his coming out on bail, and this is without any basis or material, much less cogent material.
(ii) There was a pre-detention representation made on 20.5.2010, and that was not at all considered by the authority, though it was received on 24.5.2010. The learned Counsel
placed a copy of the representation along with the proof for service on the authority.
5. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
6. As could be seen above, the detaining authority after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order, has made the order under challenge. As regards the first ground, it is an admitted position that the detenu was arrested only in the ground case registered in Crime No.719/2010. According to the learned Counsel for the petitioner, he was neither arrested nor shown arrested in respect of any one of the adverse cases. As rightly pointed out by the learned Counsel for the petitioner, he has not moved any bail application before any Court of criminal law. Paragraph 4 of the grounds of detention reads as follows:
"I am aware that Thiru. Arunagiri is in remand in E-1 Mylapore Police Station Crime No.719/2010 and he has not moved any bail application for the above case so far. The sponsoring authority has stated that the relatives of Thiru. Arunagiri are taking action to take him on bail in the above case by filing bail application before the Court and 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. Hence, there is a real possibility of his coming out on bail by filing bail application in the above case before the appropriate Court...."
7. From the above, it would be quite clear that even after recording that he has not moved any bail application, the authority has stated that there was a real possibility of his coming out on bail. This observation made by the detaining authority, is without any basis or foundation or material, much less cogent material which the law would require. In such circumstances, the order of detention has become defective.
8. As regards the second ground urg
