BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/04/2009 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM and THE HONOURABLE Ms. JUSTICE R.MALA H.C.P.(MD) No.642 of 2008 E.Panchavarnam .. Petitioner vs. 1.The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St.George, Chennai - 9. 2.The District Collector-cum- District Magistrate, Dindigul District, Dindigul. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus calling for the records of the 2nd respondent in detention order No.13/2008 dated 16.6.2008 and quash the same and consequently, directing the respondents to produce the detenu namely E.Ganesan, detained at Central Prison, Madurai before this Court and set him at liberty. !For petitioner ... Mr.V.Thirumal ^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 second respondent made
in Detention Order No.13/2008 dated 16.6.2008, whereby the petitioner’s son,
E.Ganesan 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) terming him as a “Goonda”.
2. The Court heard Mr. V.Thirumal, learned counsel appearing for the
petitioner, looked into the materials available including the order under
challenge.
3. It is not in controversy that pursuant to the recommendations made by
the sponsoring authority that the detenu, E.Ganesan was involved in three
adverse cases viz., in Crime No.614/2004 under Section 174 Cr.P.C. @ 302 IPC
registered in Sempatty Police Station; Crime No.1018/2007 under Section 379 IPC
registered in Dindigul Town North Police Station; and Crime No.1092/2007 under
Sections 457, 511 @ 457, 380 IPC registered in Dindigul Town North Police
Station and in one ground case in Crime No.148/2008 under Section 397 IPC
registered in Ammayanaickanur Police Station, after going into the entire the
materials pertaining to the cases referred to above, the detaining authority
formed his opinion that the activities of the detenu were prejudicial to the
maintenance of public order and that he should be detained under the provisions
of the Tamil Nadu Act 14/1982 terming him as a “Goonda” and accordingly, made
the order, which is the subject matter of challenge.
4. Mr.V.Thirumal, learned counsel appearing for the petitioner in his
sincere attempt assailing the order, brought to the notice of the Court, the
following grounds:-
(i) Firstly, the ground case was registered in Crime No.148/2008 for the
occurrence that took place on 9.5.2008 and he was also arrested on the same day
under Section 397 of the I.P.C.,. He made a bail application in
Crl.M.P.No.836/2008 on the file of the Principal Sessions Judge, Dindigul and
the same was dismissed on 3.6.2008. At that time, it was strongly opposed by
the State that steps were taken to invoke the provisions of the Tamil Nadu Act
14/1982 in order to detain him as a “Goonda”. Thus, it would be quite clear
that the sponsoring authority prejudged the matter and also placed his
submission accordingly that detention order was likely to be passed. Under the
circumstances, it would suffice to set aside the order of detention. In support
of his contention, the learned counsel relied on a judgment of a Division Bench
of this Court in Ganesan v. State of Tamilnadu represented by the Secretary,
Prohibition and Excise Department, Chennai and another [2005 M.L.J (Crl.) 467].
(ii) Insofar as the ground case, which was registered in Crime
No.148/2008, was for a single alleged incident of robbery that had taken place
in a brick-kiln in a village where only four or five persons were involved in
making bricks and hence, it cannot be stated to have committed in the public
place and affected the maintenance of public order and under the circumstances,
showing the ground case as one of the reasons to invoke the Tamilnadu Act
14/1982 was was not at all warranted.
(iii) Thirdly, as per the materials available in the ground case in Crime
No.148/2008, out of 3 items, the subject matter of robbery, one was a 500 rupee
currency note. The recovery would indicate Currency Note No.JCS 267415 whereas
Form No.95 actually sent to the Court would indicate the number of currency as
OED 485993. Thus, one of the material objects was actually found to be
different. If to be so, a clarification should have been sought for by the
detaining authority but not done so. This is also indicative of the fact of
non-application of mind on the part of the detaining authority.
(iv) Lastly, the learned counsel contended that the discrepancy found in
the F.I.R. and A.R.Copy would affect the order under challenge.
5. The Court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration.
6. It is not in controversy that the detenu was involved in three adverse
cases and in one ground case in Crime No.148/2008 and it is also not in
controversy that he was arrested on 9.5.2008. When he moved for bail before the
concerned Court, it was strongly opposed by the State stating that the detenu
was likely to be detained under the Tamilnadu Act 14/1982 terming him as a
“Goonda” at the time even before the order of detention came to be passed. It
would be clearly indicative of the fact that the sponsoring authority prejudged
the matter and placed the same and it would also be indicative of the mental
frame of the mind of the sponsoring authority that the detenu would be detained
under the Act 14/1982. Under the circumstances, it would affect the order of
detention.
7. Further, added circumstances is the non-application of mind on the
part of the detaining authority. According to the allegation made in the ground
case in Crime No.148/2008, a 500 rupee note was recovered and as per the
“Athatchi” found in page No.145 in the booklet, the currency note contained
No.JCS 267415 but when it was sent along with form 95 to the Court, the number
of currency note was mentioned as OED 485993. If to be so, there is a vital
difference in the property. It could be stated that there is a material
discrepancy. Under the circumstances, the detaining authority should have
called for a clarification. Under the circumstances, it is nothing but non-
application of mind on the part of the detaining authority.
8. As rightly pointed out by the learned counsel appearing for the
petitioner, the alleged occurrence in the ground case had taken place in a
brick-kiln in a village. It is not in controversy that in the brick-kiln, a few
persons were working but the detaining authority has observed that the act of
the detenu would affect the public peace. In the instant case, the incident had
taken place in a brick-kiln in a village. The Court cannot take it as the
occurrence would affect maintenance of public order and thus, it cannot be a
ground to detain him under the Act 14/1982 as a “Goonda”.
9. With regard to the discrepancy found in the F.I.R. and A.R.Copy, it can
be explained by the complaint and not by the sponsoring authority and hence, it
cannot be treated as a ground of attack.
10. Under the circumstances, the grounds 1 and 3 as stated above would be
sufficient to set aside the order of detention. 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 in accordance with law.
The Habeas Corpus Petition is allowed.
asvm
To
1.The Secretary to Government,
Prohibition and Excise Department,
Government of Tamil Nadu,
Fort St.George,
Chennai – 9.
2.The District Collector-cum-
District Magistrate,
Dindigul District,
Dindigul.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.