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.755 of 2008 Aji alias Mary Celestin alias Cheruvarakonam Rowdy Aji ... Petitioner vs. 1.The State of Tamil Nadu, rep.by Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai-9. 2.The District Collector and District Magistrate, Kanyakumari District at Nagercoil. ... 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 his proceeding P.D.No.22/2008, dated 03.07.2008, quashing the same and setting the detenu Aji @ Mary Celestin @ Cheruvarakonam Rowdy Aji, S/o.Nesian, now detained at Central Prison, Palayamkottai, at liberty. !For Petitioner ... Mr.C.Mayilvahana rajendran ^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 03.07.2008, made by the 2nd respondent, terming the detenu by
name Aji @ Mary Celestin @ Cheruvarakonam Rowdy Aji, the petitioner herein, as a
‘Goonda’.
2.Pursuant to the recommendations made by the sponsoring
authority that the detenu is involved in eight adverse cases and in one ground
case in Crime No.Pudhukadai Police Station Crime No.210/2008 registered under
Sections 341, 392, 506(ii) IPC IPC, the detaining authority, the 2nd respondent,
after looking into the materials available, formed an opinion that the
activities of the detenu adversely affected the maintenance of public peace and
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 under challenge in this petition, came to be passed by the 2nd
respondent on 03.07.2008.
3.Learned counsel for the petitioner assails the order of
detention mainly on two grounds, namely (i)on the ground of inordinate delay in
the consideration and disposal of the representation made on behalf of the
detenu; and (ii) non-application of mind on the part of the detaining authority
as to the possibility of the detenu coming out on bail, when no bail application
was filed the detenu.
4.According to the learned counsel for the petitioner, the
representation, dated 13.08.2008, was received by the Government on 19.08.2008
and though remarks were called for from the detaining authority on the next day,
such remarks were received by the Government only on 01.09.2008, after a gap of
nearly ten days and this delay in getting the remarks remains unexplained. He
would further submit that though the file was ultimately dealt with by the
Hon’ble Minister for Law on 08.09.2008, the rejection letter has been prepared
only on 16.09.2008, after a delay of seven days and this delay in communicating
the result of the representation has also caused great prejudice to the detenu.
5.Insofar as the contention as to the non-application of mind
on the part of the detaining authority, learned counsel would submit that in the
grounds of detention, in paragraph No.4, the detaining authority has stated that
she was aware of the fact that the detenu has not filed any bail application so
far in the ground case but, however, she has stated that there was a real
possibility of the detenu coming out on bail by filing bail application, which
is not based on any specific material but only mere apprehension of the
detaining authority. On the above submissions, learned counsel seeks to quash
the order of detention.
6.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.
7.After considering the submissions made and perusing the
materials on record, including the order of detention, dated 03.07.2008 and the
proforma furnished by the learned Additional Public Prosecutor, the Court finds
that both the contentions raised by the counsel for the petition are acceptable.
A perusal of the proforma shows that delay had occurred at two spells, as put-
forth by the learned counsel for the petitioner. Remarks were actually called
for by the Government from the detaining authority on 20.08.2008 but, such
remarks have been received by the Government only on 01.09.2008, after a gap of
ten days. Learned Additional Public Prosecutor submitted that there were two
declared holidays in between 20.08.2009 and 01.09.2008. Even then there was a
delay of eight days in getting the remarks and the same has not been explained.
Similarly, undue delay had occurred in preparing the rejection letter, which is
only a ministerial act. The concerned Minister has rejected the representation
on 08.09.2008 but, however, rejection letter has been prepared only on
16.09.2008. Here also learned Additional Public Prosecutor submitted that there
were two declared holidays. Even then, the Court finds some delay in preparing
the rejection letter and the same remains unexplained. Since the liberty of a
person was concerned, the authorities should have been careful and there should
not have been any unexplained delay. On this ground itself, the detention order
is liable to be quashed.
8.Insofar as the next contention that there is non-application
of mind on the part of the detaining authority in forming its opinion that there
was real possibility of the detenu coming out on bail is concerned, it is an
admitted fact that the detenu did not file any application in the ground case,
which is evident from the grounds of detention itself. In such circumstances,
the subjective satisfaction of the detaining authority that there was real
possibility of the detenu coming out on bail, in the considered opinion of the
Court, is the mere apprehension of the detaining authority without any basis
and not based on any specific material and, therefore, on this ground also, the
order of detention has got to be quashed.
9.Accordingly, the habeas corpus petition is allowed and the
order of detention in P.D.No.22/2008, dated 03.07.2008, passed by the 2nd
respondent is quashed. The detenu Aji @ Mary Celestin @ Cheruvarakonam Rowdy
Aji 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,
Chennai-600 009.
2.The District Magistrate and
District Collector,
Kanyakumari District at
Nagercoil.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.