K. Palaniammal v. The Secretary To The

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 24.5.2016

CORAM

THE HON'BLE MR.JUSTICE G.CHOCKALINGAM and THE HON'BLE MR.JUSTICE M.V.MURALIDARAN H.C.P.No. 30 of 2016 K.Palaniammal ... Petitioner Vs.

1. The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2. The Commissioner of Police Chennai City ... Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the records in connection with the order of Detention passed by the second respondent dated 07.12.2015 in Memo No.

1231/BCDFGISSSV/2015 against the petitioner husband, Kumar @ Adu Kumar Male aged 40 years S/o. Muniyan, who is confined at Central Prison, Puzhal II, Chennai and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty.

For Petitioner : Mr. S.Senthilvel For Respondents : Mr.M.Maharaja Additional Public Prosecutor

O R D E R

[Order of the Court was made by G.CHOCKALINGAM, J.] The petitioner is the wife of the detenu. The detenu has been branded as a "Goonda" under the Tamil Nadu Act 14 of 1982 and detained under the order of the 2nd respondent passed in BCDFGISSSV No.1231/2015, dated 07.12.2015.

2. Though many grounds have been raised in the petition, Mr.S.Senthilvel, the learned counsel appearing for the

petitioner, confines his argument only in respect of nonapplication of mind on the part of the detaining authority in passing the order of detention.

3. According to the learned counsel appearing for the petitioner, the detenu is in remand in 3rd adverse case in Cr.No.950/2015 and in the ground case in Cr.No.952/2015 registered in K8 Arumbakkam Police Station and he has moved bail application in Crime No.950 of 2015 in Crl.M.P.No.17579 of 2015 and the same is dismissed on 02.11.2015 by the Principal Sessions Judge, Chennai and again he has moved bail application before this Court in Crl.O.P.No.27887 of 2015 and the same is pending as on the date of the passing of the detention order. The detaining authority has arrived at the subjective satisfaction by placing reliance on a similar case registered at R-1 Mambalam Police Station in Cr.No.

3422 of 2015 under Sections 341, 294(b), 336, 427, 307 and 506(ii) IPC, wherein bail was granted by the learned Principal Sessions Judge, Chennai in Crl.M.P.No.14896 of 2015. Further, the Detaining Authority has stated that there is a possibility of the detenu coming out on bail in the 3rd adverse case and that if the detenu comes out on bail he will indulge in such further activities, which are prejudicial to the maintenance of public order. The learned counsel would add that admittedly, in this case, the bail application filed by the detenu in the third adverse case is pending. When a bail application is pending, then there is no presumption that the detenu would be granted bail. If that be so, there is no imminent possibility of the detenu coming out on bail on the basis of the bail granted in the similar case.

No cogent materials are available before the Detaining Authority to conclude / to apprehend that the detenu would likely to get bail in the third adverse case.

4. Per contra, the learned Additional Public Prosecutor would submit that the order of detention has been passed on cogent and sufficient materials and the same cannot be interfered with at the instance of the petitioner. Therefore, he submits that the Habeas Corpus Petition does not merit any consideration and the same is liable to be dismissed.

5. We have heard the learned counsel for both sides with regard to the facts.

6. As could be evidenced from the Grounds of Detention, the detenu is in remand in 3rd adverse case in Cr.No.950/2015 and in the ground case in Cr.No.952/2015 registered in K8 Arumbakkam Police Station and he has moved bail application in Crime No.950 of 2015 in Crl.M.P.No.17579 of 2015 and the same is dismissed on 02.11.2015 by the Principal Sessions Judge, Chennai and again he

has moved bail application before this Court in Crl.O.P.No.27887 of 2015 and the same is pending as on the date of the passing of the detention order. If that be so, there is no imminent possibility of the detenu coming out on bail in the said adverse case. Hence, the Detaining Authority has passed the Detention order in total non-application of mind which would vitiate the detention order.

7. In the light of the above facts, we have no hesitation in quashing the order of detention on the above mentioned ground.

8. Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order passed by the 2nd respondent is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.

Sd/- Vacation Officer //True Copy// Sub Assistant Registrar kua To 1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.

2.The Commissioner of Police Chennai City 3.The Superintendent, Central Prison, Puzhal, Chennai.

4.The Joint Secretary to Government, Public(Law & Order), Fort Saint George, Chennai - 9.

5.The Additional Public Prosecutor High Court, Madras.

H.C.P.No.30 of 2016 KS(CO) CA(31/05/2016)