BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23/04/2009
CORAM
THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM
and
THE HONOURABLE Ms. JUSTICE R.MALA
H.C.P.(MD) No.836 of 2008
Raja alias Kottairaja .. Petitioner
vs.
1.The State of Tamilnadu,
represented by
Secretary to Government of Tamil Nadu,
Home, Prohibition and Excise Department,
Fort St.George,
Chennai - 600 009.
2.The Commissioner of Police,
Madurai City.
3.The Superintendent of Prison,
Madurai Central Prison,
Madurai.
4.The Secretary,
Advisory Board,
Coovam House,
Omanadurar Government Estate,
Swami Sivanandha Salai,
Chennai - 600 002. .. Respondents
Petition filed under Article 226 of the Constitution of India to issue a
Writ of Habeas Corpus to call for the entire records connected with the
detention order of the respondent No.2, No.75/BDFGISSV/2008 dated 9.9.2008 and
quash the same and direct the respondents to produce the body and person of the
detenu by name Raja @ Kottairaja son of Nalla Mayathevar, aged about 25 years
detain at Madurai Central Prison before this Court and set him at liberty
forthwith.
!For petitioner ... Mr.R.Alagumani
^For respondents ... Mr.M.Daniel Manoharan
Addl.Public Prosecutor
:ORDER
(Order of the Court was made by M.CHOCKALINGAM, J)
This Writ Application challenges the order of the second respondent made
in No.75/BDFGISSV/2008 dated 9.9.2008 whereby the detenu was ordered to be
detained under the provisions of the Tamil Nadu Prevention 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) branding him as a “Goonda”.
2. The Court heard the learned counsel appearing for the petitioner and
looked into all the materials available including the order under challenge.
3. Pursuant to the recommendation made by the sponsoring authority that
the detenu was involved in eight adverse cases as stated in the order of
detention and in one ground case in Crime No.1155/2008 under Section 397 and
506(ii) IPC registered by C4 Thilagarthidal (Crime) PS, the detaining authority
recorded his subjective satisfaction that the activities of the detenu were
prejudicial to the maintenance of public order and that he should be detained as
a “Goonda” and accordingly, made the order of detention, which is the subject
matter of challenge before this Court.
4. Learned counsel for the petitioner in his sincere attempt of assailing
the order of detention brought to the notice of the Court the following
grounds:-
(i) Insofar as the ground case was concerned, the detenu filed Bail
Application in Crl.M.P.Nos.2875/2008 and 3064/2008 before the Court of Principal
Sessions Judge, Madruai and the same were dismissed on 18.8.2008 and 28.8.2008
respectively and another bail application filed before the same Court in
Crl.M.P.No.3165/2008 was pending on the day when the order came to be passed on
9.9.2008. But, the detaining authority has stated in its order that there was
real possibility of the detenu coming on bail. Such an observation was made
without any material or basis whatsoever.
(ii) Secondly, there were two representations made by the detenu. The
first representation was dated 17.9.2008 and the second representation was dated
13.10.2008.; When the materials were placed before the Advisory Board, the first
representation was not even placed for consideration before the Advisory Board.
It would be quite evident from the confirmation order made by the Advisory Board
and served upon the detenu where the second representation dated 13.10.2008 was
referred to but no where it speaks about the placement of the first
representation dated 17.9.2008. Thus, it would be quite clear that all the
materials were placed before the Advisory Board and thus, the order of detention
would suffer.
5. The Court heard the learned Additional Public Prosecutor on the above
contention and paid its anxious consideration on the submissions made.
6. After hearing the submissions, the Court has to necessarily agree with
the petitioner to set aside the order of detention. Insofar as the ground case
in Crime No.1155/2008 under Sections 397, 506(ii) IPC was registered by C4
Thilagarthidal (Crime) PS. The occurrence had taken place on 31.7.208. The
detenu was arrested on the very same day. He filed Bail Application in
Crl.M.P.Nos.2875/2008 and 3064/2008 before the Court of Principal Sessions
Judge, Madruai and the same were dismissed on 18.8.2008 and 28.8.2008
respectively and another bail application filed before the same Court in
Crl.M.P.No.3165/2008 was pending on the day when the order came to be passed on
9.9.2008. But, the detaining authority has stated in its order that there was
real possibility of the detenu coming on bail. Such an observation was made
without any material or basis whatsoever. It was only an apprehension in the
mind of the detaining authority and mere apprehension would not be sufficient to
pass an order of detention. To pass such an order, the Act requires a specific
material, which would impel the authority to make such an observation. In the
absence of such material, making such an observation is without any basis and
hence, the order of detention has got to be set aside.
7. Apart from the above, when the amterials were placed before the
Advisory Board, all materials should be placed. But, in the instant case, it is
highly doubtful whether all the materials were placed before the Advisory Board.
Admittedly, the petitioner made two representations; one was made on 17.9.2008
and another was made on 13.10.2008. Insofar as the representation dated
17.9.2008 is concerned, it was not placed before the Advisory Board. It would be
quite evident from the letter of rejectionserved upon the detenu. The rejection
of the same would clearly indicate that it represents the second representation
made by the detaining authority, which was dated 13.10.2008. No where the letter
whispers about the representation dated 17.9.2008 at all. This would be
indicative of the fact that the first representation made by the detenu was not
placed before the Advisory Board at all. In the absence of convincing reason for
not placing the first representation before the Advisory Board, the order of
detention would suffer.
8. On those two grounds referred to above, the order of detention has got
to be set aside. Accordingly, the order of detention is set aside. The detenu
is directed to be set at liberty forthwith unless he is required in connection
with any other case. The Habeas Corpus Petition is allowed.
asvm
To
1.The Secretary to Government of Tamil Nadu,
Home, Prohibition and Excise Department,
Fort St.George,
Chennai – 600 009.
2.The Commissioner of Police,
Madurai City.
3.The Superintendent of Prison,
Madurai Central Prison,
Madurai.
4.The Secretary,
Advisory Board,
Coovam House,
Omanadurar Government Estate,
Swami Sivanandha Salai,
Chennai – 600 002.
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.