BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT[JUDICATURE] DATED: 19/01/2005 CORAM THE HON'BLE MR.JUSTICE P.D. DINAKARAN AND THE HON'BLE MR.JUSTICE S. ASHOK KUMAR HABEAS CORPUS PETITION (MD) No.107 OF 2004 .... In the matter of detention of one Raja Bose, S/o.Raboni Morraize, branding him as a Goonda under T.N.Act 14/82. Tmt.Buela Morais .. Petitioner Vs. 1.The State of Tamil Nadu rep. by the Secretary, Prohibition and Excise Department Secretariat Chennai-9 2.The District Collector and District Magistrate, Thoothukudi District Thoothukudi. ..Respondents Petition under Article 226 of the Constitution of India praying for issuance of Writ of Habeas Corpus calling for the records relating to the order passed by the 2nd respondent in HS (M) Confdl.No.24/2004, dated 31.8.2004, quash the same and consequently to direct the respondents to produce the petitioner's son Raja Bose, now detained in Central Prison, Palayamkottai, as a Detenu, before this Court and set him at liberty forthwith. !For Petitioner :: Mr. G.R.Edmund ^For respondents :: Mr. K.Chellapandian, A.P.P., :O R D E R
(Order of the Court was made by S.ASHOK KUMAR,J)
The challenge in this habeas corpus petition is to the order of
detention, dated 31.08.2004, passed by the second respondent against one
Raja Bose (hereinafter referred as “the detenu”), branding him as a “Goonda”
and directing preventive detention under Section 3(1) of the Tamil Nadu
Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest
Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982
(Tamil Nadu Act 14 of 1982). The petitioner is the mother of the detenu.
2.Heard the learned counsel appearing for the petitioner and
the learned Additional Public Prosecutor for the respondents.
3.The learned counsel appearing for the petitioner would contend
that the impugned order of detention is liable to be quashed on the
following two grounds.
(i)When the crime referred to in the adverse case is more grave
in nature, there is no imminent possibility of the detenu being released on
bail, as opined by the detaining authority, and, therefore, the order of
detention based on such opinion, is vitiated for non application of mind and
in support of this contention, he relied on the decision of a Division Bench
of this Court reported in 2004-2-L.W.(Crl.)681 (Ameer vs. The State of
Tamil Nadu & another.)
(ii)There is unexplained delay in disposing of the
representation of the detenu and on this ground also the impugned detention
order is liable to be quashed.
4. We have also heard the learned Additional Public Prosecutor
on the above aspects and perused the materials placed before us.
5. It is seen that the order of detention came to be passed by
the second respondent based on two adverse cases in Crime No.4 of 2004,
registered on 06.01.2004, for the offences punishable under Sections 147,
148, 448, 427, 435, 109 read with Section 34 I.P.C., and in Crime No.305 of
2004, registered on 09.08.2004, for the offences punishable under Sections
147, 148, 341, 307 and 302 I.P.C. The ground case is in Crime No.307 of
2004, registered on 10.08.2004, for the offences punishable under Sections
147, 148, 427, 307 and 506(ii) I.P.C. and under Section 3(a) of Explosive
Substances Act.
6.The detaining authority, after taking into consideration the
adverse cases and particularly the ground case in Crime No.307 of 2004,
wherein the major offence alleged is only under Section 307 I.P.C., was of
the opinion that there is a possibility that the detenu could be released
on bail as he has moved bail application in the ground case before the
Principal Sessions Judge, Thoothukudi in Cr.M.P.No.1502 of 2004 which was
posted for hearing on 01.09.2004. It is admitted that the detenu has not
moved any bail application in the adverse case where the offence alleged to
have been committed by the detenu is more grave in nature, namely, under
Section 302 I.P.C. and in such circumstances, there is no imminent
possibility of the detenu being released on bail, as opined by the detaining
authority.
7.In the decision relied on by the learned counsel for the
petitioner, this Court, while following the earlier Division Bench
decisions in Dharmar vs. State of Tamil Nadu and another, reported in1995
(1) L.W.(Crl.) 333 and in Kanniappan vs. The District Magistrate and
another, reported in 2000 (1) L.W.(Crl.) 196, quashed the order of detention
holding that when the crime referred to in the adverse case is more grave in
nature, there is no imminent possibility of the accused being released on
bail and therefore the order of detention based on such opinion is vitiated
on the ground of non application of mind. The principle laid down in the
above decisions and its applicability to the instant case is not by the
learned Additional Public Prosecutor.
8.Next coming to the contention of delay in disposing of the
representation of the detenu, the representation submitted by the detenu,
dated `Nil’, was received by the Government on 13.09.2004 (Saturday) and
remarks were called on the next day, i.e. 14.09.2004 (Sunday). But, the
remarks were received by the Government from the detaining authority only on
23.09.2004, after a delay of eight days, for which there is no explanation
in the counter filed by the detaining authority, except furnishing the
dates. It is for the detaining authority or the Government to furnish
explanation for any delay at the time of disposal of the representation of
the detenu. In our opinion, on this ground of unexplained delay in
disposing of the representation of the detenu also the order of detention is
vitiated.
7.For the reasons stated above, this habeas corpus petition is
allowed and the impugned order of detention, dated 31.08.2004, made
H.S.(M)No.Confdl.No.24/2004, by the second respondent, is quashed. The
detenu is directed to be set at liberty forthwith, unless his presence is
required in connection with in any other case.