BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR.JUSTICE R.MALA Habeas Corpus Petition (MD) No.673 of 2008 Anandhi .. Petitioner Vs. 1.The Government of Tamil Nadu, Represented by its Secretary, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009. 2.The District Collector, The District Magistrate, Karur District, Karur. 3.The Inspector of Police, Aravakuruchi Police Station, In Cr.No.153/2008, Karur District. .. 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 impugned order in Crl.M.P.No.22/2008 dated 04.07.2008 passed by the second respondent and quash the same and directing the respondents to produce the detenu by name Sundarapandi @ Soundarapandi, S/o. Thavamani @ Thavamani Thevar, Hindu, aged 30 years, confined at Central Prison, Trichy and set him at liberty. !For Petitioner ... Mr.R.Venkateswaran ^For Respondents ... Mr.Isaac Manuel Addl.Public Prosecutor. :ORDER
(Order of the Court was made by M.CHOCKALINGAM,J)
This writ petition challenges the order of detention made by the
second respondent, dated 04.07.2008 in Crl.M.P.No.22 of 2008, whereby the
husband of the petitioner viz., Sundarapandi @ Soundarapandi was ordered to be
detained under the Tamil Nadu Act 14 of 1982, terming him as ‘Goonda’, as
defined under the said Act.
2.The Court heard the learned counsel for the petitioner and looked
into the available materials including the order under challenge.
3.Pursuant to the recommendations made by the sponsoring authority
that the detenu was involved in six adverse cases viz. Crime Nos.241 to 246 of
2007 by the Coimbatore Avinasipalayam Police Station under Section 379 I.P.C.
and apart from the six adverse cases, he is also involved in the ground case in
Crime No.153 of 2008, registered under Section 379 I.P.C. and subsequently
altered to Section 395 I.P.C. on the file of Aravakurichi Police Station, the
detaining authority after looking into the materials pertaining to the above
seven cases formed its opinion as found in the order of detention that the
activities of the detenu were prejudicial to the maintenance of the public order
and hence, he has got to be detained under the provisions of the Tamil Nadu Act
14 of 1982 and accordingly passed the order, which is the subject matter of
challenge before this Court.
4.Advancing the arguments on behalf of the petitioner, the learned
counsel for the petitioner in support of the petition raised the following three
grounds:
Firstly, the detenu was arrested in connection with the ground case on
12.06.2008. He had not made any application for bail before any Court of
criminal law, but, perusal of the order would indicate that there was real
possibility of the detenu coming out on bail and thus it would be not only
prejudging the decision of the Court, but also would speak of the apprehension
in the mind of the detaining authority and thus on the said ground the order
suffers.
5.Secondly, the detenu was arrested on 12.06.2008, in connection
with Crime No.153 of 2008, namely the ground case. Admittedly, the occurrence
has taken place on 12.04.2008. A perusal of the order under challenge would
indicate as if the recovery was made on 12.05.2008. Had it been correct that
the detenu was arrested on 12.06.2008, no recovery should have been effected on
12.05.2008. Under such circumstance, the detaining authority should have called
for clarification from the sponsoring authority, but failed to do so.
6.Thirdly, in the ground case originally the case has been
registered under Section 379 I.P.C. and the case of the State was that the
driver and cleaner of the lorry in which iron rods were transported parked the
vehicle and while they went to nature’s call during that night hours, the detenu
along with others took away the lorry and thus it was a case of theft.
Subsequently, the case was altered into one under Section 395 for robbery
alleging that the detenu along with others waylaid the transporting lorry with a
van and thereby robbed the iron rods and thus it was a case of robbery.
Whatever may be the case, either theft or robbery, there was no question of
disturbance of public peace and it has nothing to do with the maintenance of
public order. Under such circumstances, the ground case was taken as one of the
factors to take a decision that the activities of the detenu were against the
maintenance of the public order, which is not correct and on that ground alone
the order has got to be set aside.
7. The Court heard the learned Additional Public Prosecutor on the
above contentions and paid its anxious consideration on the submissions made.
8.It is not in controversy that the detenu was involved in six
adverse cases and one ground case as stated supra. It is also an admitted fact
that the detenu was arrested on 12.06.2008 and remanded in Crime No.153 of 2008,
which is shown as ground case. He never filed any bail application before any
Court of Criminal law, but the detaining authority has pointed out in its order
that there was a real possibility of the detenu coming out on bail, which makes
it evident that there was only an apprehension in the mind of the authority
without any reason or any matter or basis and thus the order would also indicate
that the authority without any basis whatsoever was impelled to make such
observation, which in the opinion of the Court affects the order.
9.Insofar as the other two grounds urged by the learned counsel for
the petitioner, the Court is unable to agree with him. Insofar as the question
of recovery is concerned, the occurrence has taken place on 12.04.2008. It is
also true that the detenu was arrested on 12.06.2008. But, it is not the case
of the State that the recovery was made from the detenu. The materials on
record would clearly indicate that the recovery was made from one Martin, the
co-accused, pursuant to the confession made by him, that too on 12.05.2008. Now,
if the contention put forth by the learned counsel for the petitioner is
accepted, the case of the prosecution before the Court of Criminal law should be
as if the recovery was made from the detenu, but that was not the case of the
State before the Court of criminal law. Hence, the Court has to necessarily
discountenance the said contention.
10.Insofar as the next contention of the learned counsel for the
petitioner that the occurrence has not taken place in day time and hence, there
was no disturbance of maintenance of public order is concerned, the Court is
unable to agree. The entire incident took place during the night hours on the
public road and thus in the considered opinion of the Court it would suffice to
bring it under the connotation of maintenance of public order and under such
situation the said contention cannot be countenanced and accordingly, it is
rejected.
11.Though the contentions pertaining to ground Nos.2 and 3 are
rejected, the Court has to pass orders in favour of the detenu in respect of the
first contention as stated above and on the above ground the order under
challenge has got to be made undone by upsetting the same.
12.Accordingly, the Habeas Corpus Petition is allowed and the order
of detention in Cr.M.P.No.22 of 2008 dated 04.07.2008 passed by the second
respondent is set aside. The detenu is directed to be released forthwith unless
his presence is required in connection with any other case, in accordance with
law.
sj
To:
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat,
Chennai – 600 009.
2.The District Collector,
The District Magistrate,
Karur District,
Karur.
3.The Inspector of Police,
Aravakuruchi Police Station,
Karur District.
4.The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai.