SORNABAI Vs. STATE OF TAMILNADU

JUDGEMENT

(1.) THE challenge in this habeas corpus petition is to the order of detention dated 31. 8. 2004, passed by the second respondent against one rajamony (hereinafter referred as "the detenu"), branding him as a "bootlegger" and directing preventive detention under Section 3 (1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, and Slum grabbers Act, 1982 (Tamil Nadu Act 14 of 1982 ). THE petitioner is the wife of the detenu.

(2.) 1. The learned counsel for the petitioner would contend that in the grounds of detention it is only stated that there is possibility of the detenu coming out on bail and there is no'imminent possibility'of the detenu coming out on bail and this shows that there was no compelling necessity to pass the order of detention. Learned counsel further contends that there is a vast distinction between'possibility'of coming out on bail and'imminent possibility'of coming out on bail and in support of his submission, the learned counsel relied on a decision of this Court reported in (2004)M. L. J. (Crl.)727- (Vasantha vs. The District Magistrate and the District collector, Perambalur District ). 2. 2. We have heard the learned Additional Public prosecutor on the above aspect and also gone through the materials available on record. 2. 3. In paragraph 5 of the grounds of detention, the detaining authority has stated that he was aware that there was a possibility of the detenu coming out on bail and it is not stated that there is'imminent possibility'of the detenu coming out on bail. In the decision relied on by the learned counsel for the petitioner, this Court quashed the order of detention challenged therein after holding in paragraph 2 of the judgment as follows: "2. . . There is a large distinction between possibility of coming out of bail and imminent possibility of coming out of bail. The mere possibility of coming out of bail might not have invited any authority to pass any detention order, unless it is shown in his mind that he was having compelling necessity to pass the detention order. . . . " The above principle would squarely apply to the facts of the present case and on this ground alone, the impugned order of detention is liable to be quashed.

(3.) THE facts of the present case are entirely different from the facts of the case relied on by the learned Government Advocate (Criminal Side) in the unreported case H. C. P. No. 11 of 2003. On the other hand, the facts of the present case are quite similar to the facts in GOMATHI v. DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, KANCHEEPURAM, [2002] 1 CTC 669 and maria SUSAI v. THE COMMISSIONER OF POLICE, etc. , [1998] 1 L. W. (Crl.)284. " 3. 3. THE facts referred to in the judgment cited above are exactly similar to the facts of this case also. In this case also, the police have not filed any affidavit as to how they got the crime number, viz. , by using wireless or cellphone to contact the relevant police station to ascertain the crime number. THE absence of any such affidavit filed on behalf of the Sponsoring authority and the failure of the detaining authority to get an explanation on this aspect vitiates the order of detention. 4. On both the grounds, the petition is liable to be allowed and hence, the same is allowed. THE order of detention dated 31. 8. 2004 is set aside. THE detenu is directed to be set at liberty forthwith unless his presence is required in any other crime. No costs. .