BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24/08/2009 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN AND THE HONOURABLE MR.JUSTICE C.S.KARNAN H.C.P.(MD) No.368 of 2009 Rajamani Iyer .. Petitioner Vs 1.The Commissioner of Police, Tirunelveli City. 2.The Secretary to the Government, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009. 2.The Inspector of Police, Wooraiyur Police Station, Trichy District. .. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India calling for the entire records pertaining to the order of detention passed by the 1st respondent vide his Proceedings in C.P.O/T.C /I.S/D.O. No.05/2009 dated 04.02.2009 and quash the same and consequently set the detenu by name Kannan @ Kannabiran, S/o Rajamani Iyer, Male Aged 32 years, who is kept in Central Prison, Trichy at liberty. !For Petitioner .. Mr.R.Anand ^For Respondents .. Mr.N.Senthur Pandian, Addl.Public Prosecutor :ORDER
(Order of the Court was made by P.MURGESEN, J.)
The petitioner is the father of the detenu, who was detained under Section
3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-
offenders, Forest-offenders, Goondas, Immoral Traffic offenders, Sand Offenders,
Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), by order
of the first respondent in Order No. C.P.O/T.C/I.S/D.O.No.05/2009 dated
04.02.2009 by branding him as a ‘GOONDA’.
2. There are two adverse cases and one ground case as against the detenu.
The details of the adverse cases are as under:-
Sl. Police Station and Section of Law
No. Crime Number
1. Tiruchirapalli Woraiyur 397 IPC.
Police Station
Crime No.618 of 2008
2. Tiruchirapalli Woraiyur 387 and 506(ii) IPC.
Police Station
Crime No.635 of 2008
The ground case was registered under Section 397 IPC in Crime No.742 of 2008 on
the file of Woraiyur Police Station, Tiruchirapalli. In the ground case, the
detenu was arrested on 27.12.2008 and sent to judicial custody on the same day
and he was remanded till 09.01.2009. Thereafter, his remand period was extended
upto 06.02.2009. The detention order was passed on 04.02.2009.
3. Learned counsel for the petitioner challenges the impugned order of
detention on three grounds; firstly, the remand report was not furnished to the
detenu; secondly, the Detaining Authority had not satisfied itself as to the
real possibility of the detenu coming out on bail; thirdly, there was a delay in
considering the representation of the detenu.
4. The first ground of the learned counsel for the petitioner is that the
remand report was not furnished to the detenu in the first adverse case. In the
first adverse case, in Crime No.618 of 2008, the detenu was remanded on
27.12.2008 and later the remand period was extended till 06.02.2009, for which
the remand orders were not furnished to the detenu. It is submitted by the
learned Additional Public Prosecutor that the remand reports were furnished in
the booklet. On a perusal of the booklet, we find no remand report for Crime
No.618 of 2008 is available. Learned counsel for the petitioner relied on the
decision of the Hon’ble Supreme Court reported in 1999 Supreme Court Cases (Cri)
231 (Powanammal v. State of T.N. and Another). In that case, it was pointed out
by the Hon’ble Supreme Court that the relied-on documents must be furnished to
the detenu and non-supply of the same would be fatal. Since the remand report
pertaining to Crime No.618 of 2008, which was relied upon by the Detaining
Authority was not furnished to the detenu, the order of detention is liable to
be set aside on this ground.
5. In the grounds of detention, it is stated that the detenu filed bail
applications in Crl.M.P. Nos.106/09 and 105/09 for Woraiyur Police Station Crime
Nos.742 of 2008 and 618 of 2008 respectively before the District and Sessions
Court, Tiruchirapalli and the same were dismissed on 22.01.2009 and therefore,
there was a real possibility of the detenu coming out on bail. For this, the
learned counsel for the petitioner relied on a decision of the Hon’ble Supreme
Court in the case of T.V.Sravanan v. State, reported in (2006) 1 Supreme Court
Cases (Cri) 593. In that case the bail applications moved by the appellant had
been rejected by the courts and there was no material whatsoever to apprehend
that the detenu was likely to move a bail application or that there was imminent
possibility of the prayer for bail being granted. Therefore, in that case, it
was held that the “imminent” possibility of the appellant coming out on bail was
merely the ipsi dixit of the detaining authority unsupported by any material
whatsoever; there was no cogent material before the detaining authority on the
basis of which the detaining authority could be satisfied that the detenu was
likely to be released on bail; the inference has to be drawn from the available
material on record; in the absence of such material on record the mere ipse
dixit of the detaining authority is not sufficient to sustain the order of
detention; there was, therefore, no sufficient compliance with the requirements
as laid down by the Supreme Court. Relying on the above judgment of the Hon’ble
Supreme Court, the learned counsel for the petitioner has submitted that the
order of detention is vitiated on the ground that the detaining authority had
passed the order without its subjective satisfaction as regards the imminent
possibility of the detenu coming out on bail.
6. Applying the principles enunciated in the Sravanan’s case (cited supra)
to the facts of the present case, we are of the considered view that the
impugned order of detention is vitiated also on the ground that the Detaining
Authority had not satisfied itself as regards the imminent possibility of the
detenu coming out on bail.
7. The third ground relied on by the counsel for the petitioner is that
there was delay in considering the representation of the detenu. In the
proforma submitted by the learned Additional Public Prosecutor, with regard to
the first representation of the detenu, it is stated that the file was submitted
on 26.02.2009; Under Secretary dealt with on 26.02.2009; Joint Secretary dealt
with on 26.02.2009; Minister for PWD and Law dealt with the representation on
27.02.2009; rejection letter prepared on 04.03.2009; rejection letter sent to
the detenu on 05.03.2009 and rejection letter served to the detenu on
06.03.2009. 21.02.2009, 22.02.2009 and 01.03.2009 were public holidays. Even
though the Minister for PWD and Law dealt with the representation on 27.02.2009,
the rejection letter was sent to the detenu only on 05.03.2009. A perusal of the
columns 13 to 16 of the proforma would show that there was delay in considering
the representation of the detenu. The delay was also not explained properly
with reason. Therefore, we are of the view that on this ground also, the
detention order is liable to be set aside.
8. For all the above reasons, we are of the considered view this H.C.P is
liable to be allowed and accordingly it is allowed and the order of detention in
Order No.C.P.O/T.C/I.S/D.O.No.05/2009 dated 04.02.2009 passed by the first
respondent is set aside. The detenu is directed to be released forthwith unless
his presence is required in connection with any other case.
KM
To
1.The Commissioner of Police,
Tirunelveli City.
2.The Secretary to the Government,
Government of Tamil Nadu,
Home, Prohibition and Excise Department,
Fort St.George,
Chennai-600 009.
3.The Inspector of Police,
Wooraiyur Police Station,
Trichy District.