Manonmani vs The Commissioner of Police, Madras-8 and The Special Commissioner and Secretary to Govt of Tamil Nadu, Fort St. George, Madras-9

The wife of the detenu, by name Manonmani has filed this writ petition under Art. 226 of the Constitution of India for the issue of a Writ of

Habeas Corpus quashing the order of detention passed against her husband-detenu by name Durai and setting him at liberty.

The impugned order was passed by the first Respondent, namely Commissioner of Police, Madras, in exercising powers under S. 3(1) of the

Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act,

1982, hereinafter referred to as the Act with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The

impugned order was passed on the ground that the detenu came to the adverse notice as a Bootlegger in view of the two cases referred to in the

preamble of the detention order and on the basis of the ground case he was detained. Mr. Gopinath, learned Counsel for the Petitioner, challenged

the order of detention on the ground that the detenu was in judicial custody and there was absolutely no compelling necessity for detaining him

under Act 14 of 1982. The learned Counsel also submitted that only in the ground case chloral hydrate was detected and the other cases referred

to in the preamble of the detention order relate to transport of I.D. arrack and the Chemical Analyst''s report reveals that they contain Chloral

hydrate. Further, there is no material whatsoever for the Detaining Authority to pass the order of detention on the ground that if the detenu were to

remain at large he would endanger further activities and that it would be prejudicial to the maintenance of public order and that the recourse to the

normal criminal law would not have the desired effect of effectively preventing him indulging in any such activities. According to the learned

Counsel, the detenu has not filed any bail application before the Court which remanded him. In this connection the learned Counsel also drew our

attention to the decisions of the Supreme Court and it has been held in a catena of cases that it is not disputed that the Detaining Authority can pass

an order against the detenu even when the detenu is in judicial custody. But the detaining Authority must be aware of this fact and must have also

considered the same and must have been satisfied with the compelling necessity to detain him not with standing the fact that he is in judicial

custody. In view of the ratio laid down in various decisions of the Supreme Court, the mere averment that if he were to remain at large he would

endanger further activities prejudicial to the maintenance of public order is, in our view, hardly a sufficient ground for passing the order of detention.

In the instant case except referring the fact that the detenu is on remand and is in judicial custody, neither in the grounds of detention nor in the

counter affidavit filed by the Detaining Authority there was any indication that this factor or the question that the detenu might be released or there

was such a possibility of his being released was taken into consideration by the Detaining Authority while passing the order. Further, if there were

cogent materials for thinking that the detenu might be released, then these things should have been made apparent. On going through the detention

order we are of the view that there is absolutely nothing to show that there was any imminent possibility of his being released and he would further

indulge in such activities which are prejudicial to the maintenance of public order. On the other hand, in view of the absence of allegations even in

the counter affidavit and the detention order about the imminent possibility of the detenu being released on bail and the absence of material or

compelling reasons to justify his detention, we are of the view that the impugned order of detention passed against the detenu, who is already in

Judicial custody, is bad and invalid in law.

In the result, the writ petition is allowed, the order of detention is hereby quashed and the detenu is directed to be set at liberty forthwith, if he is

not otherwise required in connection with any other case against him.