@JUDGMENTTAG-ORDER
Janarthanam, J.@mdashOne Dharmar (Petitioner) is the detenu. He is stated to have been involved, apart from the ground case, in two other
adverse cases, covered by Serial Nos. l and 2 of paragraph 1 of grounds of detention.
(a)(i) The first adverse case covered by Serial No. l is relatable to a transaction which happened on 6.10.93 at 22.00 hours at Madhavan Nair
Colony, Therespuram, Tuticorin. In the said transaction, the detenu and three others were stated to have criminally trespassed into the house of
one Perumal and assaulted him and another by name Palavesam with deadly weapons and caused grievous injuries to them.
(ii) On the complaint of the said Palavesam, injured, a case in Crime No. 1023/93 of Tuticorin North Police Station had been registered for the
alleged offences under Sections 323, 324, 326 and 452 I.P.C.
(iii) The detenu was stated to have been arrested on 14.10.93 and was sent for remand. He was however released on bail by Judicial Magistrate
No. II, Tuticorin on 18.10.93. The final report appeared to have been filed in the said case, which had been taken into file of Judicial Magistrate
No. II, Tuticorin as C.C. 136/94.
(b)(i) Adverse case No. 2 covered by Serial No. 2 is relatable to a transaction which happened on 10.5.94 at about 23:15 hours at Davispuram
Road, North Pillayar Koil Street Junction, while one Samuel and Rooban were riding in their bicycle towards north, the detenu and four others,
armed with swords, forming themselves into an unlawful assembly, wrongfully restrained Samuel and murdered him by infliction of multiple injuries
on his person, besides causing grievous injuries to one Rooban, who tried to save the said Samuel.(ii) They also chased one Murugesan by
brandishing their weapons, who was rushing to the rescue of Samuel and Rooban.
(iii) On the complaint of Murugesan, a case was registered in Crime No. 485/94 on the file of Tuticorin North Police Station of the alleged
offences under Sections 147, 148, 341, 314, 506(2) and 302, I.P.C.
2. (a) The ground case incident took place the next day viz., 11.5.94 at 10:00 A.M. near Urundayankoil at Muthukrishnapuram, Tuticorin. The
occurrence in the ground case on the complaint of one Rajan, had been registered as a case in Crime No. 486/94 on the file of Tuticorin North
Police Station for the alleged offences under Sections 341, 342, 427 and 506(2), I.P.C. The Inspector of Police, Tuticorin North Police Station
took up further investigation of the case.
(b) The detenu had been arrested on 11.5.94 at about 5:00 P.M. and he had been produced before Judicial Magistrate No. II, Tuticorin on
12.5.94 praying for remand by way of two separate requisitions not only for the occurrence relatable to adverse case No. 2 but also to the
occurrence relatable to the ground case. Learned Judicial Magistrate No .II, Tuticorin also passed orders, remanding the detenu for a period of 15
days till upto 26.5.94 in both those cases. Separate requisitions for extension of remand had been filed before the said Magistrate on 26.5.94 and
the said learned Magistrate passed orders, granting extension of remand in those requisitions till upto 9.6.94.
(c) Follow up action had been taken by the Sponsoring Authority in order to detain the detenu under Act 14 of 1982.
3. The District Magistrate and Collector, Chidambaranar District, Tuticorin, second Respondent on perusal of the materials placed before him and
deriving subjective satisfaction as to the impelling need a necessity to detain him under Act 14 of 1982, in exercise of the powers conferred by
Sub-section (1) of Section 3 of Tamil Nadu Act 14 of 1982, clamped upon him the impugned order of detention in his proceedings H.S.(M)
Confidential No. 33/94, dated 31.5.94 with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and
health, branding him as Goonda.
4. Mr. R. Shanmugasundaram, learned Counsel appearing for the Petitioner would press into service the lone and sole ground viz. that there was
utter non-application of mind on the part of the second Respondent Detaining Authority as respects the imminent possibility of the detenu coming
out on bail and further indulge in activities which would be prejudicial to the maintenance of public order which is getting reflected in paragraph 5 of
the grounds of detention and on this short ground alone he would say that the impugned order of detention is liable to be set aside.
5. Mr. R. Regupathi, learned Additional Public Prosecutor, representing the Respondents, would however repel such submission and produce the
relevant title for personal consideration of this Court.
6. The narration of the events that took place on 10.5.94 and 11.5.94 is so eloquent to speak for themselves and no further elucidation is
necessary. Though the incident or occurrence in the adverse case No. 2 happened on 10.5.94, resulting in the murder of one Samuel, besides
causing grievous injuries to one Rooban, yet the detenu was not at all arrested till subsequent to the occurrence in the ground case which took
place as already indicated at 10:00 A.M. on 11.5.94 and his arrest had been effected only at 5:00 P.M. on the said day. Admittedly separate
requisitions given by the Sponsoring Authority before the Judicial Magistrate No. II, Tuticorin for initial remand and subsequent extension of
remand. Orders passed by the said Magistrate granting initial remand as well as extension of remand had all been placed before the second
Respondent-Detaining Authority for perusal and consideration before ever the impugned order of detention had been passed.
7. Not only those records had been placed before the second Respondent-Detaining Authority, but the copy of those documents had been
furnished to the detenu, which are available at pages 121 to 123. 167. 225 and 229 of the booklet of documents supplied to the detenu.
Notwithstanding the fact that those documents were available for perusal and consideration the second Respondent Detaining Authority, however,
did not at all appear to have applied his mind to those documents fully and he appeared to have taken into consideration the fact of the detenu
being lodged in prison as a remand prisoner only in the ground case for less serious offences under Sections 341, 342, 323, 427 and 506(2),
I.P.C. and did not at all take into consideration the fact that the detenu had been arrested in a serious offence of murder and other offences
relatable to human body and remanded therefor and consequently lodged in prison, at the time when the impugned order of detention had been
passed. This is getting reflected in paragraph 5 of the grounds of detention, which reads as below:
I am aware that Thiru Dharmar is in remand upto 9.6.94. He had not tiled any bail application so far, and that there is imminent possibility that he
may come out on bail for the offences under Sections 341, 342, 323, 427 and 506(2), I.P.C. by tiling bail application in the court. If he comes out
on bail, he will indulge in further activities which will be prejudicial to the maintenance of public order..........
8. It is thus clear that the second Respondent-Detaining Authority had not at all adverted to the factum of the detenu being lodged in prison as a
remand prisoner in a serious offence of murder covered by adverse case No. 2, while considering the imminent possibility of his coming out on bail
and his further indulging in prejudicial activities affecting the maintenance of public order.
9. In such state of affairs, we are of the opinion that there was utter non-application of mind on the part of the second Respondent-Detaining
Authority as respects the imminent possibility of the detenu coming out on bail and further indulging in prejudicial activities affecting the maintenance
of public order. In this view of the matter, as rightly contended by learned Counsel for the Petitioner, the impugned order of detention is liable to be
set aside and the same is accordingly set aside. The detenu is therefore ordered to be set at liberty forthwith unless and until he is required to be
detained in connection with any other case. The H.C.P. is thus allowed.
