BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03/04/2007 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR H.C.P.(MD) No.76 of 2007 Saraswathiammal .. Petitioner vs 1.The District Collector and District Magistrate, Tirunelveli District Tirunelveli 2.The Secretary to Government of Tamil Nadu Prohibition and Excise Department Secretariat, Chennai 600 009. 3.The Inspector of Police Thalayoothu Police Station Thalayoothu Tirunelveli District .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying to issue a writ of habeas corpus directing the respondents to produce the body of detenu namely Murugan alias Muruganandam before this Court who is now detained in the Central Prison, Palayamkottai, pursuant to the detention order passed by the first respondent in M.H.S. Confdl. No.32 of 2006 dated 1.12.2006 and to call for the records and quash the same and release the detenu at liberty forthwith. !For Petitioner : Mr.N.Mohideen Basha ^For Respondents : Mr.Daniel Manoharan Additional Public Prosecutor :ORDER
Challenging an order of detention made by the first respondent, the
detaining authority, dated 1.12.2006, the petitioner, the mother of the detenu,
has brought forth this petition.
2.The order under challenge is perused. The Court heard the learned
Counsel for the petitioner and also the learned Additional Pubic Prosecutor for
the respondents.
3.The learned Counsel in his sincere attempt of assailing the order, urged
the following grounds.
(i) There was a delay of 8 days when the remarks were called for and they
were received, which remained unexplained.
(ii) The sponsoring authority placed materials pertaining to a ground case
and two adverse cases. The ground case was registered by Thalayuthu Police
Station in Crime No.368/2006 under Sections 294(b), 332, 307 and 506(ii) of
I.P.C. for an occurrence that took place on 24.11.2006. As regards two adverse
cases, one was registered by Tirunelveli Town Police Station in Crime
No.944/2006 under Sections 147, 148, 341, 294(b) and 506(ii) of I.P.C. for an
occurrence that took place on 21.8.2006 and the other was registered by
Thalayuthu Police Station in Crime No.363/2006 under Sections 342, 394, 387 and
468 of I.P.C. for an occurrence that took place on 13.11.2006. In the instant
case, as found in paragraph 6 of the order of detention, the authority has taken
into consideration that there is imminent possibility of the detenu coming out
on bail. He has referred to the ground case which is in Crime No.368/2006 on
the file of Thalayuthu Police Station referred to above, but has not taken into
account the second adverse case in Crime No.363/2006 under Sections 342, 394,
387 and 468 of I.P.C. The detaining authority passed the order that there was
imminent possibility of the detenu coming out on bail; but, he has failed to
take into account the second adverse case referred to above. Even if the detenu
comes out on bail in Crime No.368/2006, whether he could come out on bail in
Crime No.363/2006 was not taken note of.
(iii) The detaining authority has simply pointed out that there is
imminent possibility of the detenu coming out on bail. Even at the time of the
recommendation made by the sponsoring authority or when the order was passed by
the detaining authority, no bail application was pending. Thus, it was only an
expression of a statement that there is imminent possibility of the detenu
coming out on bail. While there was no bail application pending before a Court
of law, there was no possibility for the detaining authority to ascertain the
situation whether he could come out on bail. Thus, this would indicate the non-
application of mind. On these grounds, the order has got to be set aside.
4.The Court heard the learned Additional Public Prosecutor on the above
contentions. The Court made a thorough scrutiny of the available materials.
5.As could be seen from the materials and as pointed out by the learned
Counsel for the petitioner, on the strength of one ground case and two adverse
cases, an order came to be passed by the detaining authority on 1.12.2006. The
proforma filed by the State, is looked into, from which it could be seen that
the remarks were called for on 12.2.2007; but, it was received on 20.2.2007.
There was an interval of 8 days. According to the State, there were two
intervening holidays. Except this, there were six working days; but, the State
has no explanation to offer. Under the circumstances, this delay, in the
opinion of this Court, has caused prejudice to the interest of the detenu.
6.Apart from the above, as rightly pointed out by the learned Counsel for
the petitioner, out of these three cases, the second adverse case seems to be
graver than the ground case itself, and the detaining authority has pointed out
that there is imminent possibility of the detenu coming out on bail. It is also
pertinent to point out that as admitted by the State, there was no bail
application pending either at the time when the sponsoring authority made the
recommendation, or at the time when the order of detention was passed by the
detaining authority. Therefore, it is simply an expression made. While no bail
application was pending, it cannot be stated that the detaining authority could
have arrived at a subjective satisfaction. That apart, without appraisement of
the situation, he has also referred to only the ground case which is not as
grave as second adverse case. For these reasons, this Court is of the view that
the order is infirm, and hence, it has got to be set aside.
7.In the result, this habeas corpus petition is allowed setting aside the
order of the first respondent. The detenu is directed to be set at liberty
forthwith unless his presence is required in any other case.
To:
1.The District Collector and
District Magistrate,
Tirunelveli District
Tirunelveli
2.The Secretary to Government
of Tamil Nadu
Prohibition and Excise Department
Secretariat, Chennai 600 009.
3.The Inspector of Police
Thalayoothu Police Station
Thalayoothu
Tirunelveli District
4.The Public Prosecutor
Madurai Bench of Madras High Court