BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/03/2010 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN AND THE HONOURABLE MR.JUSTICE T.MATHIVANAN H.C.P.(MD) No.23 of 2010 Dhanam .. Petitioner Vs 1.The State of Tamil Nadu, represented by The Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009. 2.The District Collector and District Magistrate, Dindigul District. 3.The Superintendent of Prison, Madurai Central Prison, Madurai District. 4.The Secretary, Advisory Board, 32, Rajaji Salai, Singaravelar Maligai, Chennai Collectorate, Chennai. .. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India calling for the entire records connected with the detention order of Respondent No.2 in Detention Order No.18/2009 dated 30.09.2009 and quash the same and direct the respondents to produce the body and person of the petitioner's husband by name K.Murugan, Son of Karuppa Thevar, aged about 50 years detained in Madurai Central Prison, before this Court and set him at liberty forthwith. !For Petitioner ... Mr.Malaikani for Mr.R.Alagumani ^For Respondents ... Mr.Isaac Manuel, Addl.Public Prosecutor :ORDER
(Order of the Court was made by P.MURGESEN, J.)
The petitioner is the wife of the detenu. The detenu has been 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 2nd respondent in Detention Order No.18/2009
dated 30.09.2009, by branding him as a ‘DRUG-OFFENDER’.
2. There are three adverse cases and one ground case as against the
detenu. The details of the adverse cases are as under:-
Sl.No. Police Station Section of Law
and Crime No.
1. Dindigul 8(c) r/w 20(b) (ii) (A) NDPS Act.
NIB CID
Crime No.150 of 2008
2. Dindigul 8(c) r/w 20(b) (ii) (A) NDPS Act.
NIB CID
Crime No.53 of 2009
3. Dindigul 8(c) r/w 20(b) (ii) (A) NDPS Act.
NIB CID
Crime No.68 of 2009
The ground case was registered under Section 8(c) r/w 20(b)(ii)(B) NDPS Act,
1985 on the file of Dindigul NIB CID in Crime No.133 of 2009. In the ground
case, the detenu was arrested on 29.07.2009 and produced before the Judicial
Magistrate No.3, Dindigul on the same day and remanded up to 12.08.2009.
Thereafter, his remand has been periodically extended up to 01.10.2009. The
detention order was clamped on the detenu on 30.09.2009.
3. Learned counsel for the petitioner has submitted that the order of
detention passed by the second respondent is vitiated on three grounds; firstly
the Detaining Authority had not satisfied itself as to the real possibility of
the detenu coming out on bail; secondly, the Detaining Authority had passed the
order without application of mind; and thirdly, there was delay in considering
the representation of the detenu, by the Detaining Authority.
4. The first ground raised by the learned counsel for the petitioner is
that the Detaining Authority had not satisfied itself as to the real possibility
of the detenu coming out on bail. In this case, the detenu was arrested on
29.07.2009 and the detention order was passed on 30.09.2009. He has not filed
any bail application so far. But the Detaining Authority has observed that there
was a real possibility of the detenu coming out on bail by filing a bail
application in future, since in similar cases accused were enlarged on bail. It
is only a presumption. The Detaining Authority passed the order only on
presumptions and it is not based upon any material. In the absence of any
material, it cannot be said that there was a likelihood of the detenu coming out
on bail. Hence on this ground, the detention order is liable to be set aside.
5. With regard to the second ground, the learned counsel for the
petitioner has submitted that in the Counter Affidavit filed by the second
respondent, it is stated that 5.500 Kilograms of ganja was seized, whereas in
the Arrest Report, available in Page No.39 of the booklet, it is stated that
5.600 Kilograms of ganja was seized, which amounts to non-application of mind on
the part of the Detaining Authority. We have also analysed the same and are of
the opinion that the Detaining Authority had passed the order without
considering the defect. On this ground also, the Detention Order is liable to be
set aside.
6. The third ground relied upon by the counsel for the petitioner is there
was a delay in considering the representation of the detenu. In this
connection, the learned Additional Public Prosecutor appearing on behalf of the
respondents, has submitted a Proforma. It is stated in the Proforma as under:-
Representation received on : 12.01.2010
Remarks called for on : 13.01.2010
Reminder dated : 20.01.2010
Remarks received on : 21.01.2010
File submitted on : 21.01.2010
Under Secretary dealt with
on : 21.01.2010
Deputy Secretary dealt
with on : 22.01.2010
File circulated to
Hon’ble Minister (Law) : 22.01.2010
Minister for Law dealt
with on : 25.01.2010
Rejection letter prepared
on : 28.01.2010
Rejection letter sent to
the detenu : 28.01.2010
Rejection letter served
on to the detenu : 30.01.2010
Though the Hon’ble Minister for Law dealt with the representation on 25.01.2010,
the rejection letter was sent to the detenu only on 28.01.2010 and it was served
on to the detenu only on 30.01.2010. These delays are not properly explained
with reasons. Therefore, we are of the considered view that on this ground also,
the detention order is liable to be set aside.
7. Accordingly, the Habeas Corpus Petition is allowed and the order of
detention in Order No. 18 of 2009 dated 30.09.2009 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.
KM
To
1.The Secretary to Government,
Government of Tamil Nadu,
Home, Prohibition and Excise Department,
Fort St.George,
Chennai-600 009.
2.The District Collector and District Magistrate,
Dindigul District.
3.The Superintendent of Prison,
Madurai Central Prison,
Madurai District.
4.The Secretary,
Advisory Board,
32, Rajaji Salai,
Singaravelar Maligai,
Chennai Collectorate,
Chennai.