BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23/04/2009
CORAM
THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM
and
THE HONOURABLE Ms. JUSTICE R.MALA
H.C.P.(MD) No.928 of 2008
B.Kanava Ibramsha alias Sait .. Petitioner
vs.
1.The District Magistrate and
District Collector,
Dindigul District,
Dindigul.
2.State of Tamil Nadu,
rep. By its Secretary to Government,
Home Prohibition and Excise Department,
Secretariat, Fort St.George,
Chennai - 600 009. .. Respondents
Petition filed under Article 226 of the Constitution of India to issue a
Writ of Habeas Corpus to call for the entire records relating to the impugned
order of detention made in Detention Order No.11/08 dated 26.05.2008 on the file
of the District Magistrate and District Collector, Dindigul District, Dindigul,
the first respondent herein dated 26.5.2008 against the detenu by name B.Kanava
Ibramsha @ Sait, S/o.Bajrullah, who isnow confined in Central Prison, Madurai,
and quash the impugned order of detention by setting aside the same and set him
at liberty.
!For petitioner ... Mr.N.Subramani
^For respondents ... Mr.M.Daniel Manoharan
Addl.Public Prosecutor
:ORDER
(Order of the Court was made by M.CHOCKALINGAM, J)
This Writ Application challenges the order of the first respondent made in
Detention Order No.11/2008 dated 26.5.2008 whereby the petitioner was ordered to
be detained under the provisions of the Tamil Nadu Prevention of Dangerous
Activities of Boot-Leggers, Drug Offenders, Forest Offenders, Goondas, Immoral
Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982
(Tamil Nadu Act 14 of 1982) branding him as a “Goonda”.
2. The Court heard the learned counsel appearing for the petitioner and
looked into all the materials available including the order under challenge.
3. Pursuant to the recommendation made by the sponsoring authority that
the detenu was involved in three adverse cases and in one ground case in Crime
No.221/2008 under Section 397 IPC registered by Dindigul Town South Police
Station for the incident that took place on 15.4.2008 as stated in the order of
detention, after scrutiny of the materials available, the detaining authority
recorded his subjective satisfaction that the activities of the detenu were
prejudicial to the maintenance of public order and that he should be detained as
a “Goonda” and accordingly, made the order of detention, which is the subject
matter of challenge before this Court.
4. Learned counsel for the petitioner in his sincere attempt of assailing
the order of detention brought to the notice of the Court that the order of
detention came to be passed on 26.5.2008. The detenu was in remand in connection
with Dindigul Town South Police Station Cr.No.218/2008 u/s.341, 324, 506(i) IPC
and Cr.No.221/2008 u/s.397 IPC. The bail petition filed by the detenu with
regard to Cr.No.221/2008 before the Court of Judicial Magistrate No.III,
Dindigul in Cr.M.P.No.1320/2008 was dismissed on 7.5.2008 and in the same case,
another bail petition filed by the detenu before the Vacation Sessions Judge,
Dindigul in Cr.M.P.No.807/2008 was dismissed on 20.5.2008. But, the detaining
authority has stated in its order that there was real possibility of the detenu
coming out on bail. Such an observation was made without any material or basis
whatsoever.
5. Apart from that, the learned counsel brought to the notice of the Court
that there was delay of 5 days in consideration of the representation of the
detenu.
6. The Court heard the learned Additional Public Prosecutor on the above
contention and paid its anxious consideration on the submissions made.
7. In the instant ground case in Crime No.299/2008, the occurrence had
taken place on 15.4.2008 and he was arrested on the same day. The detenu was in
remand in connection with Dindigul Town South Police Station Cr.No.218/2008
u/s.341, 324, 506(i) IPC and Cr.No.221/2008 u/s.397 IPC. The bail petition filed
by the detenu with regard to Cr.No.221/2008 before the Court of Judicial
Magistrate No.III, Dindigul in Cr.M.P.No.1320/2008 was dismissed on 7.5.2008 and
in the same case, another bail petition filed by the detenu before the Vacation
Sessions Judge, Dindigul in Cr.M.P.No.807/2008 was also dismissed on 20.5.2008.
Thereafter, he had not filed any bail application or was pending before any
Court of Criminal law. But, the detaining authority has stated in its order that
there was real possibility of the detenu coming out on bail and such an
observation was made without any material or basis whatsoever. It was only an
apprehension in the mind of the detaining authority and mere apprehension would
not be sufficient to pass an order of detention. To pass such an order, the Act
requires a specific material, which would impel the authority to make such an
observation. In the absence of such material, making such an observation is
without any basis and hence, the order of detention has got to be set aside.
8. Apart from that, the Proforma placed before the Court by the State
would indicate that the representation of the detenu was dealt with by the
Minister for Public Works & Law on 15.10.2008 and the rejection letter was
prepared on 22.10.2008 and thus there was delay of 7 days and according to the
prosecutor, there were 2 intervening holidays. Even assuming that there were 2
days holidays, there was delay of 5 days, for which no explantion is forthcoming
from the State. On the above ground, the order of detention has got to be set
aside.
9. Accordingly, the order of detention is set aside. The detenu is
directed to be set at liberty forthwith unless he is required in connection with
any other case. The Habeas Corpus Petition is allowed.
asvm
To
1. THE DISTRICT MAGISTRATE AND
DISTRICT COLLECTOR, DINDIGUL DISTRICT, DINDIGUL
2. THE SECRETARY TO GOVERNMENT
HOME, PROHIBITION & EXCISE DEPARTMENT, SECRETARIAT,
FORT ST. GEORGE, CHENNAI 600 009
3. THE SUPERINTENDENT, CENTRAL PRISON, MADURAI
4. THE JOIONT SECRETARY TO GOVERNMENT, PUBLIC LAW AND ORDER,
FORT SAINT GEORGE, CHENNAI 9
5. THE ADDITIONAL PUBLIC PROSECUTOR,
MADURAI BENCH OF MADRAS HIGHCOURT, MADURAI