Magalakshmi vs The State of Tamilnadu

P.D. Dinakaran, J.—The petitioner, who is the mother of one Elango @ Elangovan (hereinafter referred to as ""the detenu""), who had been

incarcerated by the order of detention dated 31.1.2004 passed by the second respondent herein, dubbing him as a Goonda, u/s 3(1) of the Tamil

Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest-Offenders, Goondas, Immoral Traffic Offenders and Slum

Grabbers Act, 1982, seeks a writ of Habeas Corpus to call for the entire records leading to the detention of the detenu by the second respondent

vide order No.11/BDFGIS/ 2004, dated 31.1.2004 on the file of the second respondent, to quash the same as illegal and consequently to direct

the respondents to produce the body of the detenu from Central Prison, Chennai.

The order of detention came to be passed by the second respondent based on a ground case said to have taken place on 8.1.2004 at about

12.00 hours. On that day, the detenu, along with Saravanan @ Kavai Saravanan, Selva @ Selvakumar, Ranga @ Ranganathan, Sekar @

Karuppu Sekar, Palani and others, armed with knife and log in their hands, went to the backside gate of the Kapaleeswarar temple and attacked

Ravi and Nagaraj. On hearing the hue and cry of one Karpagam, wife of Ravi, and public came for their rescue. Noticing the rushing of public, the

detenu along with the abovesaid persons, picked up soda water bottles and hurled the same against the public and thereby created traffic

dislocation in that area. The said Karpagam, lodged a complaint and the same was registered as Crime No.49 of 2004 on the file of the E1

Mylapore Police Station for the offences punishable under Sections 147, 148, 341, 324, 336, 427, 307 and 506(ii) IPC. Thereafter, the detenu

was remanded.

That apart, there are four adverse cases in Crime Nos.1866/2002, 785/2003, 831/2003 and 840/2003 on the file of E1 Mylapore Police

Station for the offence punishable under Sections 147, 148, 341, 324, 326, 302, 307, 336, 384 and 506(ii) IPC registered against the detenu.

The detaining authority, after taking into consideration the ground case and the adverse cases, being satisfied that the detenu was acting in a

manner prejudicial to the maintenance of public order, ordered the detention.

The petitioner challenges the impugned order of detention on the only ground that the second respondent has observed in the grounds of

detention that there is an imminent possibility of the detenu coming out on bail and non-mentioning of the fact that the detenu had already filed a bail

application before the Principal Sessions Judge, Chennai, in Crl.M.P.No.832 of 2004 on 27.1.2004, and the same was pending at the time of

passing the order of detention amounts to non-application of mind and therefore, the impugned order of detention is liable to be set aside for non

application of mind.

In C.CHITHAMBARA SELVI v. STATE OF TAMIL NADU REP. BY ITS SECRETARY, PROHIBITION & EXCISE DEPARTMENT,

FORT ST.GEORGE, MADRAS-9 AND ANOTHER, 1998 (2) MWN (Cri.) 326, a Division Bench of this Court held that failure to take notice

of the pendency of the bail application on the part of the detaining authority while passing the impugned order of detention amounts to non-

application of mind, as the detaining authority was of the opinion that the detenu had not filed any bail application.

Applying the ratio laid down in C.CHITHAMBARA SELVI v. STATE OF TAMIL NADU REP. BY ITS SECRETARY, PROHIBITION &

EXCISE DEPARTMENT, FORT ST.GEORGE, MADRAS-9 AND ANOTHER, 1998 (2) MWN (Cri.) 326, the impugned order of detention

is vitiated. The habeas corpus petition is allowed. The detention order dated 31.1.2004 is set aside. The detenu Elango @ Elangovan is directed to

be released forthwith, unless and otherwise he is required in connection with any other case.