IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17-6-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU HCP No.10 of 2008 Manickam .. Petitioner vs 1.The State of Tamilnadu Rep. By the Secretary to Government Prohibition and Excise Department Fort St. George Chennai 600 009. 2.The Commissioner of Police Chennai City Chennai 600 008. 3.The Inspector of Police Anti Vice Squad Chindatripet, Chennai 2. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus to call for the records relating to the detention order passed by the second respondent in Order No.423/BDFGISSV/2007, dated 3.12.2007, quash the same and consequently direct the respondent to produce the body of the person A.Manickam, son of Arumugam @ Arul, the petitioner, now detained in Central Prison, Puzhal, before this Court and set him at liberty forthwith. For Petitioner : Mr.K.Shanmugakani For Respondents : Mr.Babu Muthu Meeran Additional Public Prosecutor ORDER
(Order of the Court was made by M.CHOCKALINGAM, J.)
Challenge is made to an order of the second respondent made in Order No.423/BDFGISSV/2007, dated 3.12.2007.
2.The affidavit in support of the petition and the order under challenge are perused. The Court heard the learned Counsel for the petitioner and also the learned Additional Public Prosecutor for the respondents on the contentions.
3.Admittedly, on the recommendations made by the sponsoring authority, the second respondent, Commissioner of Police, Madras, after recording the subjective satisfaction that the detenu Manickam had indulged in activities which were prejudicial to the maintenance of public order and health, termed him as an immoral traffic offender, and also found that in order to restrain him from committing such activities, a necessity arose to pass an order of detention under the provisions of Act 14/82, and accordingly, he passed the order. At the time when he passed the order, it was brought to his notice that the alleged detenu was actually involved in Anti Vice Squad PS Crime Nos.43/2005, 13/2006 and 61/2007 and one ground case in Crime No.123/2007 all under the provisions of the Prevention of Immoral Traffic Act. The said order is under challenge.
4.Inter alia, the learned Counsel for the petitioner while making his attempt of assailing the order, would submit that the order has got to be quashed on the main ground that there was no application of mind; that the ground case was registered in Crime No.123/2007 by the Anti Vice Squad PS at 14.00 hours on 13.11.2007; that the arrest card and the seizure mahazar were actually prepared, according to the report, at about 8.00 a.m.; but, the FIR has actually been prepared only at about 14.00 hours; that if to be so, the seizure mahazar and the arrest card which were prepared at about 8.00 a.m., could not contain the crime number; but, the materials submitted before the detaining authority, contained the crime number also; that under the circumstances, a duty was cast upon the detaining authority to call for a clarification, but, he has failed to do so, which would mean that he has not applied his mind, and on that ground, it has got to be set aside.
5.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
6.It is not in controversy that on the strength of three adverse cases and one ground case put forth by the sponsoring authority, the detaining authority, the Commissioner of Police, Madras, has passed the order under challenge. A reading of the order would clearly indicate that the materials are sufficient, in his opinion, to arrive at a conclusion that the activities of the detenu are prejudicial to the maintenance of public order and health, and he was to be termed as an immoral traffic offender, and therefore, it was a fit case where the detention order was to be passed. Before passing such a detention order, law mandates the detaining authority must apply his mind strictly; but, in the instant case, as rightly pointed out by the learned Counsel for the petitioner, the ground case was registered by Anti Vice Squad PS in Crime No.123/2007 at about 14.00 hours on 13.11.2007. The arrest card and the seizure mahazar, according to the report, were prepared at about 8.00 a.m. Had it been true that such arrest card was made as put forth by the Anti Vice Squad at about 8.00 a.m. on that day, the crime number could not have been mentioned there, since the case was registered at about 14.00 hours, and thus, it casts a doubt in the entire case. If to be so, a duty was cast upon the detaining authority to call for clarification, but, he has failed to do so, which, in the opinion of the Court, would amount to failure of application of mind, and the same would suffice to quash the order.
7.Accordingly, this habeas corpus petition is allowed, quashing the order of the second respondent. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.
(M.C.,J.) (S.P.V.,J.)
17-6-2008
Index: yes
Internet: yes
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To:
1.The Secretary to
Government
Prohibition and Excise
Department
Fort St. George
Chennai 600 009.
2.The Commissioner of Police
Chennai City
Chennai 600 008.
3.The Inspector of Police
Anti Vice Squad
Chindatripet, Chennai 2.
4.The Public Prosecutor
High Court, Madras.
M.CHOCKALINGAM, J.
AND
S.PALANIVELU, J.
nsv/
HCP No.10 of 2008
DT: 17-6-2008