BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM and THE HONOURABLE Ms.JUSTICE R.MALA Habeas Corpus Petition (MD) No.801 of 2008 Pushpavalli .. Petitioner Vs. 1.The Secretary to Government, Home Prohibition and Exercise Department, Secretariat, Chennai-9. 2.The District Collector & District Magistrate, Ramanathapuram District, Ramanathapuram. .. Respondents Petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records in pursuant to the proceedings of the second respondent in Cr.M.P.No.6/GOONDA/2008 dated 01.09.2008 and quash the same and consequently direct the respondents to produce the detenu namely S.Karthik S/o. Soorapuli @ Subramaniyan who is now detained in Central Prison Madurai before this Court and set him at liberty. !For Petitioner ... Mr.Subash Babu ^For Respondents ... Mr.M.Daniel Manohar Addl.Public Prosecutor. :ORDER
(Order of the Court was made by M.CHOCKALINGAM,J)
In this writ application challenge is made to an order of the second
respondent made in Cr.M.P.No.6/GOONDA/2008 dated 01.09.2008, whereby the son of
the petitioner namely S.Karthik was detained under the provisions of Dangerous
Activities of Boot-leggers, Drug offenders, Forest offenders, Goondas, Immoral
Traffic offenders, Sand offenders, Slum Grabbers and Video Pirates Act, 1982
(Tamil Nadu Act 14 of 1982) (hereinafter referred as the Act) terming him as a
‘Goonda’ as defined under the provisions of the Act.
2. The Court heard the learned counsel for the petitioner and also looked
into all the materials available in particular the order under challenge.
3. It is not in controversy that the petitioner’s son by name S.Karthik,
pursuant to the recommendations made by the sponsoring authority and on scrutiny
of the materials was ordered to be detained under the Act. The detaining
authority has recorded his subjective satisfaction that the activities of the
detenu were prejudicial to the Public Order and hence the detenu has got to be
detained as ‘Goonda’. It is also not in controversy, that the detenu was
involved in nine adverse cases all of them are registered on the file of
Kenikkarai Police Station namely;Cr.No.349/2001 under Sections 457 and 511 IPC;
Cr.No.201/2003 under Section 380 IPC; Cr.No.540/2004 under Section 370 IPC;
Cr.No.541/2004 under Section 379 IPC; Cr.No.560/2004 under Section 379 IPC;
Cr.No.561/2004 under Section 379 IPC; Cr.No.348/2005 under Sections 147, 148,
324, 326, 307 r/w 149 IPC; Cr.No.469/2005 under Sections 387, 294(b) IPC and
Cr.No.443/2007 under Section 384 and he was also involved in one ground case in
Cr.No.604/2008 under Section 386 IPC on the file of Kenikkarai Police Station.
The ground case came to be registered for a occurrence took place on 20.08.2008.
4. The learned counsel for the petitioner assailed the order on two
grounds. Firstly, a bail application was filed in the ground case and the same
was dismissed by the learned Judicial Magistrate No.II, Ramanathapuram on
22.08.2008. The order under challenge came to be passed on 01.09.2008. On that
day when the order was passed there was no bail application filed or pending
before any Criminal Court. But, the detaining authority in its order has
observed that there was a real possibility of the detenu coming out on bail.
This observation was without any reason or basis or any material whatsoever. It
was only an apprehension in the minds of the authority. Secondly, a perusal of
the copy of the First Information Report in connection with Cr.No.443/2007, one
of the adverse cases, served upon the detenu would clearly indicate that the
said case was registered on 27.04.2007 for the occurrence that has taken place
on 27.06.2007. Thus, a discrepancy was apparent on the face of the record. But,
the detaining authority has not called for any clarification in this regard. It
was one of the documents relied on by the detaining authority. On that ground
also the order suffers. Hence, the order has got to be set aside. Added further,
there was a delay in consideration of the representation.
5. The Court heard the learned Additional Public Prosecutor and paid its
anxious consideration.
6. As rightly pointed out by the learned counsel for the petitioner, in
the ground case the bail application filed before the learned Judicial
Magistrate No.II, Ramanathapurm came to be dismissed on 22.08.2008. The order
under challenge came to be passed on 01.09.2008, but on that day there was no
bail application pending before any criminal forum. If to be so, the observation
made by the detaining authority in its order that there was a real possibility
of the detenu coming out on bail was only an apprehension. There was no basis
for the said observation and it was only prejudging the situation. As rightly
pointed out by the learned counsel for the petitioner, Cr.No.443/2007 came to
be registered on 27.04.2007, on the file of Kenikarrai Police Station, which is
shown as one of the adverse cases, for the occurrence taken place on 27.06.2007.
If to be so, the case could not be registered earlier and it could seen from a
copy of the First Information Report. When this discrepancy was noted, the
detaining authority should have call for a clarification, but miserably failed
to do so. On this ground also the order suffers. There is also delay in
consideration of the representation. From the proforma it could be seen that the
representation was received on 16.09.2008; remarks were called for on 17.09.2008
and the same were received on 24.09.2008. There was 7 days delay. Out this 7
days delay, according to the learned Additional Public Prosecutor, there was 2
intervening holidays. Thus there was remaining 5 days delay which remained
unexplained. All the above said grounds are suffice to set aside the order under
challenge. Hence, this Court has to make the order undone by upsetting the same.
8. Accordingly, the Habeas Corpus Petition is allowed and the detention
order in Cr.M.P.No.6/GOONDA/2008 dated 01.09.2008 passed by the second
respondent is quashed. The detenu is directed to be set at liberty forthwith
unless his presence, in accordance with law, is required in connection with any
other case.
jikr/sj
To:
1.The Secretary to Government,
Home Prohibition and Exercise Department,
Secretariat,
Chennai-9.
2.The District Collector & District Magistrate,
Ramanathapuram District,
Ramanathapuram.