@JUDGMENTTAG-ORDER
R. Regupathi, J.@mdashFather of the detenu challenges the impugned order of detention, dated 11/4/2008, detaining his son as "Goonda", as contemplated under the Tamil Nadu Prevention of dangerous activities of Boot leggers (Tamil Nadu Act 14/1982).
2. Learned counsel appearing for the petitioner points out that the ground case occurrence pertains to offence u/s 307 of the Indian Penal Code and that the Detaining Authority, while arriving at the subjective satisfaction, relied on a adverse case for offence punishable u/s 302 of the Indian Penal Code which relates to an occurrence that took place on the same day of the ground case occurrence namely 24/3/2008. It is the following observation of the Detaining Authority at para No. 6 of the grounds of detention.
I am aware that Thiru. Nambi @ Nambirajan is in remand in Veeravanallur Police Station Crime number 81 /2008 and he has not moved any bail application so far. I am also aware that there is real possibility of his coming out on bail by filing bail application for the above case since in similar cases bails are granted by the concerned Court or higher Courts. If he comes out on bail, he will indulge in further activities in future, which will be prejudicial to the maintenance of the public order.
Referring to page No. 129 of the booklet, which reveals that the detenu has been remanded to judicial custody in respect of the adverse case also, learned counsel submits that the Detaining Authority did not even consider as to whether the detenu was arrested and remanded in the adverse case and also the possibility of his coming out on bail in the said case, thus, there is non-application of mind on the part of the Detaining Authority, adversely affecting the ultimate order of detention passed by him.
3. With reference to the submission made by the counsel for the petitioner, we have perused the materials available on record.
Obviously, the Detaining Authority has taken into account the judicial custody of the detenu in the ground case alone and though relied on the adverse case for passing the detention order, failed to take note of such remand particulars relating to the adverse case. Further, the adverse case is of more grave in nature and application of mind with regard to filing of bail application in the said case and the possibility of the detenu coming out on bail is not reflected in the grounds of detention. Therefore, there is non-application of mind on the part of the detaining authority and under such circumstances, we are of the considered view that it is a fit case to set aside the order of detention.
4. The Habeas Corpus Petition is allowed and the order of detention passed by the first respondent in M.H.S. Confdl. No. 60/2008 dated 11/4/2008 is set aside. The detenue is directed to be set at liberty forthwith unless his detention is required in connection with any other case or cause.
