Radha vs The Secretary to Govt., Prohibition and Excise Department and The Commissioner of Police

P.K. Misra, J.—Mother of the detenu has filed this Habeas Corpus Petition challenging the order of detention dated 30.1.2007, which has

been passed on the allegation that detenu is a Goonda.

Detenu came to the adverse notice of the police in two adverse cases, one is R-10 MGR Nagar Police Station Cr. No. 63/2007 registered u/s

392 IPC., and the other is R-7 K.K. Nagar Police Station Cr. No. 63/2007 registered u/s 397 IPC. Both the cases had occurred on the very

same day and, at the time of passing the detention order, were still under investigation. The order of detention has been passed on the basis of the

occurrence dated 11.1.2007. It is alleged that offence under Sections 341, 336, 397 and 506(2) IPC have been committed and case has been

registered as R-7 K.K. Nagar Police Station Cr. No. 68 of 2007.

Learned Counsel for the petitioner has raised the following contentions:

(1) In the Tamil order of detention, which is served on the detenu, date ""30"" has not been indicated at the top right hand side corner of the order

and, therefore, it was not possible for the detenu, who knows only Tamil, to find out the actual date of order of detention.

(2) Conclusion of the detaining authority that there was possibility of detenu being released on bail is not based on any material on record and it is

the mere ipse dixit of the detaining authority and, therefore, the detention order is to be quashed.

(3) There has been unnecessary and unexplained delay in disposal of the representation made on behalf of the detenu.

So far as the first contention is concerned, even though in the copies of detention order available in the booklet the date ""30"" has been indicated

in the Tamil version, we found from the original order produced by the counsel for the petitioner that the date ""30"" is not indicated at the top right

hand side corner of the order. However, signature is dated as ""30"". Similarly, on the left side top corner Number ""33"" is also found missing. We

find that in the English order of detention there is no such defect. According to us, omission to give date ""30"" at the top of the order as well as ""33

on the left hand side has not caused any prejudice to the detenu. Moreover, the number ""30"", which is written in Arabic in English order of

detention, is also usually written in similar fashion while writing in Tamil. It is also to be noticed that in the grounds of detention, at relevant places

number ""30"" has been indicated and similarly it is clearly indicated in para 2 of the grounds of detention that detenu had been detained by virtue of

the order dated 30.1.2007. Therefore, the mere inadvertent omission to give the date of order at some of the places in Tamil order of detention

cannot be considered as a serious lapse so as to vitiate the order of detention, particularly it can be said that the detenu has not been prejudiced in

any manner.

Next submission of the petitioner is to the effect that the detaining authority has merely jumped to the conclusion that possibility of the detenu

coming out on bail is without any cogent material.

In paragraph 4 of the grounds of detention, it has been indicated:

I am aware that Thiru Shankar is in remand in R-7 K.K. Nagar Police Station Crime No. 68/2007 and he has moved bail applications before

the Principal Sessions Court, Chennai in Crl. M.P. Nos. 854/2007 and 855/2007 in R7 K.K. Nagar Police Station Crime Nos. 68/2007 and

63/2007 respectively and both the bail applications are pending. I am also aware that there is very likely of his coming out on bail since in similar

cases bails are granted by the Sessions Court or High Court. If he comes out on bail, he will indulge in further activities, which will be prejudicial to

the maintenance of pubic order.

Law is now well settled that even where the detenu is in custody in connection with some pending case, the order of detention can be passed,

provided the detaining authority comes to the conclusion regarding the imminent possibility of the detenu being released on bail. See Rameshwar

Shaw Vs. District Magistrate, Burdwan and Another, , Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others, ; Rajesh Gulati Vs. Govt.

of N.C.T. of Delhi and Another, ; (2006) 1 M.L.J. (Crl.) 539 T.V. Saravanan alias S.A.R. Prasanna Venkatachariar Chaturvedi v. State, Through

Secretary and Anr. (2006) 9 SCC 711 A. Shanthi (Smt) v. Government Of Tamil Nadu and Ors. and the Full Bench decision in 2005 (4) CTC

497 K. Thirupathi v. District Magistrate and District Collector, Tiruchirapalli District at Tiruchirapali and Anr. including the H.C.P. No. 1303 of

2006 disposed of on 27.6.2007 and HCP. Nos. 46, 52, 74, 79 and 131 of 2007 date 19.6.2007.

In the present case, the detaining authority has referred to the fact that bail applications have been filed, which were pending. Then the detaining

authority came to the conclusion regarding possibility of coming out on bail ""since in similar cases bails are granted by the Sessions Court or High

Court"". It is worthwhile to notice that the detenu alleged to have committed offence inter alia u/s 397 IPC in respect of two matters wherein bail

applications have been filed. Keeping in view the nature of allegations and trend or orders passed by the Courts in such matters, it is difficult to

come to any different conclusion. The subjective satisfaction recorded by the detaining authority in the peculiar facts and circumstances of the case

cannot be said to be baseless warranting interference by this Court.

Last contention of the counsel for the petitioner, however, appears to be acceptable. The contention is relating to undue delay in disposal of the

representation. From the chart produced by the learned Addl. Public Prosecutor, we find that representation received on 28.2.2007 has been

rejected on 22.3.2007. No convincing explanation is forthcoming regarding intervening delay. In such view of the matter, we are constrained to

quash the order of detention.

For the aforesaid reasons, the Habeas Corpus Petition is allowed and the detention order is quashed and the detenu is set at liberty forthwith

unless his presence is required in connection with any other case.