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Judgment
M. Chockalingam, J.—This Habeas Corpus Petition challenges the order of detention passed by the second respondent in Memo No.
310/BDFGISSV/2009 dated 17.09.2009, whereby the detenu is ordered to be detained under the Act 14 of 1982 after branding him as
Goonda"".
This Court looked into all the materials available on record, in particular the order under challenge and also the order dated 5.3.2010 passed by
this Court on earlier occasion in H.C.P. No. 2079 of 2009. This Court heard the learned Counsel appearing for the petitioner.
It is not in controversy that pursuant to the recommendation made by the Sponsoring Authority that the detenu is involved in 26 adverse cases,
which are as follows, and also one ground case in Crime No. 405 of 2009 registered by Central Crime Branch, Chennai under Sections 406, 420,
307 and 506(ii) of the Indian Penal Code and Sections 3, 4, 5 of Drug and Magic Remedies (Obj. Adv) Act, 1954 read with 328 of the Indian
Penal Code and under Sections 40, 49B read with 51(1) Proviso of Wild Life Protection Act, 1972, the Detaining Authority, on scrutiny of
materials available on record, made the order under challenge after recording its subjective satisfaction that the activities of the detenu were
prejudicial to the maintenance of public order.
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Sl. No. Police Station & Crime No. Section of Law
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E-1 Mylapore Police Station Cr. No. 635/2009 420 I.P.C.
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E-1 Mylapore Police Station Cr. No. 664/2009 420 I.P.C.
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E-1 Mylapore Police Station Cr. No. 680/2009 420 I.P.C.
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E-1 Mylapore Police Station Cr. No. 685/2009 420 I.P.C.
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E-1 Mylapore Police Station Cr. No. 695/2009 420 I.P.C.
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E-1 Mylapore Police Station Cr. No. 718/2009 420 I.P.C. @ 420 I.P.C., 3, 4, 5
of Drug and Magic Remedies
(Obj. Adv) Act, 1954 r/w 328
I.P.C.
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E-1 Mylapore Police Station Cr. No. 719/2009 420 I.P.C. @ 420 I.P.C., 3, 4, 5
of Drug and Magic Remedies
(Obj. Adv) Act, 1954 r/w 328
I.P.C.
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E-1 Mylapore Police Station Cr. No. 720/2009 420 I.P.C. @ 420 I.P.C., 3, 4, 5
of Drug and Magic Remedies
(Obj. Adv) Act, 1954 r/w 328
I.P.C.
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E-1 Mylapore Police Station Cr. No. 721/2009 420 I.P.C.
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E-1 Mylapore Police Station Cr. No. 731/2009 420 I.P.C. @ 420 I.P.C., 3, 4, 5
of Drug and Magic Remedies
(Obj. Adv) Act, 1954 r/w 328
I.P.C.
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E-1 Mylapore Police Station Cr. No. 750/2009 420 I.P.C. @ 420 I.P.C., 3, 4, 5
of Drug and Magic Remedies
(Obj. Adv) Act, 1954 r/w 328
I.P.C.
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E-1 Mylapore Police Station Cr. No. 751/2009 420 I.P.C. @ 420 I.P.C., 3, 4, 5
of Drug and Magic Remedies
(Obj. Adv) Act, 1954 r/w 328
I.P.C.
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E-1 Mylapore Police Station Cr. No. 759/2009 420 I.P.C. @ 420 I.P.C., 3, 4, 5
of Drug and Magic Remedies
(Obj. Adv) Act, 1954 r/w 328
I.P.C.
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E-1 Mylapore Police Station Cr. No. 760/2009 420 I.P.C. @ 420 I.P.C., 3, 4, 5
of Drug and Magic Remedies
(Obj. Adv) Act, 1954 r/w 328
I.P.C.
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E-1 Mylapore Police Station Cr. No. 772/2009 420 I.P.C.
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E-1 Mylapore Police Station Cr. No. 773/2009 420 I.P.C.
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E-1 Mylapore Police Station Cr. No. 802/2009 420 I.P.C.
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E-1 Mylapore Police Station Cr. No. 803/2009 420 I.P.C.
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E-1 Mylapore Police Station Cr. No. 804/2009 420 I.P.C.
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E-1 Mylapore Police Station Cr. No. 806/2009 420 I.P.C.
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E-1 Mylapore Police Station Cr. No. 824/2009 420 I.P.C.
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E-1 Mylapore Police Station Cr. No. 825/2009 420 I.P.C.
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E-1 Mylapore Police Station Cr. No. 830/2009 420 I.P.C. @ 420 I.P.C., 3, 4, 5
of Drug and Magic Remedies
(Obj. Adv) Act, 1954 r/w 328
I.P.C., Section 30 Arms Act, 1959
read with 307 IPC.
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CCB ''X'' Cr. No. 386/2009 420 I.P.C.
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CCB ''X'' Cr. No. 395/2009 420 I.P.C.
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CCB ''X'' Cr. No. 402/2009 420, 420 & 506(ii) I.P.C.
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Learned Senior Counsel, while advancing the arguments on behalf of the petitioner, at the outset, brought to the notice of this Court that
originally a petition in H.C.P. No. 2079 of 2009 was filed and the same was dismissed on 5.3.2010 and subsequently though a SLP was made
before the Apex Court, the same was dismissed as withdrawn. Now the grounds which are now raised in this habeas corpus petition were actually
not raised in the earlier petition in H.C.P. No. 2079 of 2009. Hence, there is no impediment in law to raise them.
Learned Senior Counsel added further that there was no compelling necessity to pass the order of detention since the detention order would
read that normal criminal law should not have the effect of preventing the detenu effectively from indulging in activities prejudicial to the
maintenance of public order. The Detaining authority has failed to apply its mind while passing the detention order. The grounds of detention would
indicate that the complaints were received on 12.8.2009, 17.8.2009 and 19.8.2009 by the Detaining Authority, But all those complaints were
transferred to one Mr. B. Senthilkumar, Inspector of Police, Central Crime Branch, Chennai on 4.8.2009 and thus, it would quite indicative of the
fact that those complaints could not have been transferred on 4.8.2009 which were actually received on 12.8.2009, 17.8.2009 and 19.8.2009.
Learned Senior Counsel would urge as a second ground that the reading of the F.I.Rs. in Crime Nos. 386 of 2009, 395 of 2009 and 402 of
2009 would show that the complaints were received by the Detaining Authority and he has also recommended for registration of the cases by the
CCB and having received the complaints and recommended for registration of the cases prior to the passing of the detention order, the Detaining
Authority should not have passed the order of detention and should have placed the materials before some other competent Authority and thus,
this would vitiate the order of detention.
Learned Senior Counsel added further that the detenu was originally arrested in Crime No. 686 of 2009 on 16.7.2009, but the order of
detention came to be passed on 17.9.2009 and there was a unreasonable and unexplained delay. Apart from this, the transcripts of the TV
interviews, which were actually relied upon by the Detaining Authority and indicated in the detention order, were neither placed nor considered by
the Detaining Authority.
Learned Senior Counsel added further that the Detaining Authority passed the detention order under the provision of Section 2(f) of the
T.N.P.D. Act 14 of 1982 and there is no such section, but only Section 2(1)(f) was available and thus, caused great confusion to the detenu and
he was also prevented from making effective representation and thus, it is also sufficient to set aside the order of detention.
Learned Senior Counsel added further that the Detaining Authority has relied on the proceedings in R.C. No. Cr. III(1)/138/21210/09 dated
4.8.2009 and thus, this is a material for transferring all the cases to CCB, Chennai. This is a relied on document, but the same was not placed
before the Detaining Authority or to the Advisory Board. Under the circumstances, on all these grounds, the detention order has got to be set
aside.
This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions
made.
It is an admitted position that originally a petition in H.C.P. No. 2079 of 2009 was filed on 16.10.2009 and the same was dismissed on
5.3.2010. A perusal of the order would make it clear and also admitted by other side that the grounds now raised have not been raised earlier.
Hence, there is no impediment in law to consider the grounds now raised in this habeas corpus petition.
As could be seen from the available materials, the order of detention, branding the detenu as ""Goonda"", came to be passed on the strength of
the materials pointing to the involvement of the detenu in 27 adverse cases and also one ground case in Crime No. 405 of 2009 registered by
Central Crime Branch, Chennai under Sections 406, 420, 307 and 506(ii) of the Indian Penal Code. As could be seen from the order of detention,
the complaints were actually received on 12.8.2009, 17.8.2009 and also on 19.8.2009, which is found in the order as follows:
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Sl. Date of Police Station & Section of Name and address of the
No. complaint Crime No. Law complainant
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12/8/2009 CCB ''X'' 420 IPC Anand, s/o Varadharajalu,
Cr. No. 386/09 No. 76/26A, Reddipalayam Street,
Mohappair West, Chennai�37.
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17.8.2009 CCB ''X'' 420 IPC Dinesh Karthik, s/o Rengaraj,
Cr. No. 395/09 No. H/11/5, 5th Street, TNHB
Quarters, Sanitorium, Chennai-47.
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19.8.2009 CCB ''X'' 420, 420 & Gnanasekaran, s/o Govindasamy,
Cr. No. 402/09 506(ii) IPC No. 252, Thangam Veethi,
Dr. Ambedkar Veethi,
Arakkonam.
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From the very reading, it would be quite clear that these complaints in Crime Nos. 386 of 2009, 395 of 2009 and 402 of 2009 were received
on 12.8.2009, 17.8.2009 and 19.8.2009 respectively. The very next paragraph reads as follows:
Further, the entire investigation of cases registered against Thiru. P. Vijayakumar at E-1 Mylapore Police Station and Central Crime Branch,
Chennai Police, were transferred on my orders in proceedings R.C. No. Cr.III(1)/138/21210/09 dated 04.08.2009 to Central Crime Branch and
Thiru. B. Senthil Kumar, Inspector of Police, Central Crime Branch to investigate the matter and to file charge sheet.
It is a matter of surprise to note that while the complainants were received on 12.8.2009, 17.8.2009 and 19.8.2009 by the Commissioner of
Police, second respondent herein, an order of transfer was made on 4.8.2009. Under such circumstances, a clarification was required, but no
clarification was sought for, which would quite indicative of the fact of non-application of mind by the Detaining Authority.
This Court is able to see force in the contention of the learned Senior Counsel appearing for the petitioner that the Detaining Authority, who
has received all the above complaints and also recommended for registration of cases by CCB, Chennai Police, should have placed all the
materials before some other competent Authority, but not done so. The Detaining Authority, having received the complaints and also
recommended for registration of the cases, should not have taken into consideration the matter and passed the detention order. A Division Bench
of this Court, by an order dated 17.4.2009 in H.C.P. No. 260 of 2009, had an occasion to consider such a situation wherein it was stated as
follows:
Further more, while coming to various arguments advanced, we find every force in the argument advanced on the part of the learned senior
Counsel for the detenu that when the Detaining Authority himself has recommended for registration of the case, prior to passing of the detention
order, he becomes a part of the investigating agency and there is every possibility of his not arriving at any subjective satisfaction. It could have
been a different situation if the papers had been placed before some other competent authority to arrive at subjective satisfaction, required by law,
before passing the order of detention, which is not the situation on hand.
This Court is unable to see any reason to deviate from the earlier order of this Court. In a given situation like this, the Detaining Authority, to
arrive at the subjective satisfaction, it is possible only if he has not received the complaints nor recommended for registration of the case. Once the
Authority received the complaints and recommended for registration of the cases, it is needless to say that he becomes part of the investigating
agency. If that be so, the same Authority should not consider the matter again and arrive at a subjective satisfaction as done in the instant case. In
the circumstances, this Court is of the considered opinion that the submission as putforth by the learned Senior Counsel for the petitioner has got
sufficient force. On the above grounds, the Court is agreeing with the contention putforth by the learned Senior Counsel appearing for the petitioner
and the detention order has got to be set aside.
Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in Memo No.
310/BDFGISSV/2009 dated 17.9.2009. The detenu, namely, P. Vijaya Kumar, who is now confined at Central Prison, Puzhal, Chennai is
directed to be set at liberty forthwith unless his presence is required in connection with any other case. Consequently, the connected M.P. is
closed.