BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:27/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE Ms.JUSTICE R.MALA Habeas Corpus Petition (MD) No.906 of 2008 Loganathan ... Petitioner vs. 1.State of Tamil Nadu, Rep.by its Secretary to Government, Prohibition and Excise Department, Fort St. George, Chennai-600 009. 2.The District Collector and District Magistrate, Trichy District, Trichy. ... Respondents Petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records relating to the Detention Order passed by the 2nd Respondent in Cr.M.P.No.15/2008, dated 23.05.2008, quashing the same and setting the detenu Mahendran @ Gandhi, son of Loganathan, now detained at Central Prison, Trichy, at liberty. !For Petitioner ... Mr.N.Anandakumar ^For Respondents ... Mr.N.Daniel Manoharan, Addl.Public Prosecutor. :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J.)
In this writ petition, challenge is made to the order of
detention, dated 23.05.2008, made by the 2nd respondent, whereby the son of the
petitioner one by name Mahendran @ Gandhi was ordered to be detained under
Tamil Nadu Act 14/1982, branding him as a ‘Goonda’.
2.Consequent upon the recommendations made by the sponsoring
authority that the detenu was involved in five adverse cases and in one ground
case in Crime No.208/2008 registered under Sections 392 and 506(ii) IPC on the
file of Tiruverumbur Police Station, for the occurrence which took place on
17.04.2008, the detaining authority, the 2nd respondent, after looking into the
materials available, formed an opinion that the activities of the detenu were
prejudicial to the maintenance of public order and hence he has got to be
detained under the provisions of the Tamil Nadu Act 14/1982 terming him as a
‘Goonda’. Accordingly, the detention order, which is the subject matter of
challenge in this petition, came to be passed by the 2nd respondent on
23.05.2008.
3.Assailing the order of detention, learned counsel for the
petitioner, the father of the detenu, brought to the notice of the Court the
following two grounds. Insofar as the ground was concerned, the detenu moved
for bail in Crl.M.P.No.1227/2008 on the file of Judicial Magistrate No.VI,
Tiruchirappalli and the same was dismissed on 13.05.2008 and thereafter no bail
application was filed but, the detaining authority has stated that there was a
real possibility of the detenu coming out on bail, which opinion is without any
basis and not based any specific material and therefore the order of detention
is liable to be quashed.
Secondly, there was a delay in consideration and disposal of
the representation. According to the learned counsel, the representation, dated
12.06.2008, was received by the Government on 21.11.2008 and though remarks were
called from the detaining authority on the very day, the remarks were received
by the Government only on 01.12.2008, after an inordinate delay of 10 days and
the remains unexplained and such delay has caused great prejudice to the detenu.
On the above two contentions, learned counsel for the petitioner seeks to quash
the order of detention.
4.The Court heard the learned Additional Public Prosecutor on
the above contentions and paid its anxious consideration on the submissions made
by the counsel on either side.
5.In the instant case, it is not in controversy that the
ground case in Crime No.2008/2008 for the offences under Sections 392 and
506(ii) IPC was registered on 17.04.2008 and the detenu was arrested on the same
day and remanded to judicial custody. Further, the bail application in
Cr.M.P.No.2337/2008, moved by the detenu in connection with the ground case, was
dismissed by the Judicial Magistrate No.VI, Tiruchirappalli on 13.05.2008. It
is not the case of the State that there was any bail application filed
thereafter. Thus, neither any application was filed for bail nor pending on the
date of passing the order of detention i.e. on 23.05.2008. But, the detaining
authority has stated that there was a real possibility of the detenu coming out
on bail, which, in the considered opinion of the Court, is the mere apprehension
in the mind of the detaining authority, without any basis and hence it cannot
be said that there was real possibility of the detenu coming out on bail, as
recorded by the detaining authority, and on this ground the impugned order of
detention suffers.
6.Insofar as the delay aspect is concerned, as rightly pointed
out by the learned counsel for the petitioner, there was undue and inordinate
delay in furnishing remarks to the representation submitted by the detenu. It
is seen from the proforma furnished by the learned Additional Public Prosecutor
that though remarks were called for by the Government from the detaining
authority on 21.11.2008, such remarks were received by the Government only on
01.12.2008, after a gap of 10 days. Law is well settled that since personal
liberty of a person is involved in the preventive detention, the authorities
concerned are required to deal with the representation with utmost dispatch and
great promptitude, without any unnecessary delay. In the present case, in the
absence of any explanation for the undue and inordinate delay, the Court is of
the considered opinion that the order of detention has got to be quashed on this
ground also.
7.Accordingly, the habeas corpus petition is allowed and the
order of detention in No. Cr.M.P.15/2008, dated 23.05.2008, passed by the 2nd
respondent is quashed. The detenu Mahendran alias Gandhi, is directed to be
released forthwith, unless his presence, in accordance with law, is required in
connection with any other case.
gb
To:
1.The Secretary to Government,
Government of Tamil Nadu,
Prohibition and Excise Department,
Fort St. George, Chennai-9.
2.The District Collector and
District Magistrate,
Trichy District, Trichy.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.