BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/04/2009 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR. JUSTICE M.VENUGOPAL H.C.P.(MD) No.631 of 2008 Habiba .. Petitioner vs. 1.The State of Tamil Nadu, rep. by its Secretary to Government Public (Law and Order - F) Department, Secretariat, Chennai - 600 009. 2.The District Collector & District Magistrate, Dindigul (Dt), Dindigul. 3.The Inspector of Police, Dindigul Town South Police Station, Dindigul District. .. 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 detention order passed in NSA Detention Order No.08/2008 dated 26.7.2008 on the file of the 2nd respondent herein and quash the same and direct the respondents to produce the body of the petitioner's son namely J.Abudalip, now confined in Central Prison, Madurai, as NSA detenu 4084, before this Court and set him at liberty. !For petitioner ... Mr.J.Gunaseelan Muthiah ^For respondents... Mr.Daniel Manoharan Addl.Public Prosecutor :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J)
This Writ Petition challenges the order of the second respondent dated
26.7.2008 whereby the order of detention was made against the detenu, son of the
petitioner, under the provisions of the National Security Act, 1980 (Central Act
65 of 1980).
2. It is not in controversy that the detenu was involved in seven adverse
cases viz., Crime No.275/2006 under Sections 147, 148, 341, 387, 506(ii) IPC
registered in Dindigul Town West Police Station; Crime No.244/2008 under
Sections 147, 148, 294(b), 506(ii) IPC registered in Dindigul Town West Police
Station; Crime No.239 of 2008 under sections 143, 341, 336 IPC and 3(1) TNPPDL
Act 1984 registered in Dindigul Town North Police Station; Crime No.360/2008
under Sections 341, 323, 506(i) IPC; Crime No.347/2008 under Sections 147, 148,
341, 324, 307, 153(A), 153(B) IPC r/w 3(1) TNPPDL Act, 1984 registered in
Dindigul Town South Police Station; Crime No.348/2008 under Sections 147, 148,
341, 153(A), 153(B) IPC r/w 3(1) TNPPDL Act 1984 registered in Dindigul Town
South Police Station; and Crime No.382/2008 under Sections 147, 148, 341 IPC r/w
3(1) TNPPDL Act, 1984 registered in Dindigul Town West Police Station. Apart
from the seven adverse cases, he was also involved in one ground case, which was
registered by the Dindigul Town South Police Station in Crime No.346/2008 under
Sections 147, 148, 341, 307, 153(A), 153(B) IPC r/w 3(1) TNPPDL Act 1984.
3. The detaining authority, after looking into all the materials available
recorded his subjective satisfaction that the detenu by his activities had
created communal tension between the Hindus and the Muslims and affected the
public order and hence, he should be detained under the provisions of the
National Security Act.
4. The Court looked into the materials available, in particular, the order
under challenge and also the Counter Affidavit filed by the State.
5. Assailing the order of detention, the learned counsel appearing for the
petitioner would submit as follows:-
(i) The detenu was arrested in the ground case in Crime No.346/2008 and
produced before the Judicial Magistrate No.III, Dindigul on 19.6.2008 and was
remanded till 3.7.2008 and then his remand was extended upto 17.7.2008 and
finally, his remand was extended upto 31.7.2008. The order of remand extension
if looked into, it would indicate that it was done by production of the detenu
before the Court whereas the order of detention would read as if it was done by
video conferencing and thus, the order of detention is found contrary to the
actual materials available.
(ii) Secondly, the detenu filed a bail petition before the Court of
Principal Sessions Judge, Dindigul in Cr.M.P.No.1078/2008 and the same was
ordered. While granting bail, the Principal Sessions Judge imposed a condition
that the accused/detenu should deposit a sum of Rs.1,000/- and also furnish two
sureties each executing a bond for a sum of Rs.10,000/-. Contrarily, it is
found in the detention order that he was directed to furnish two sureties each
executing a bond for a sum of Rs.10,000/- but insofar as cash deposit of
Rs.1,000/-, it is not found so. Thus, it is also pointing to the non-
application of mind on the part of the detaining authority.
(iii) Added further the learned counsel for the petitioner that in respect
of one adverse case and one ground case, bail was granted in his favour. He was
actually under custody in respect of three adverse cases, which were pending
against the detenu. The detaining authority has stated that there was a real
possibility of the detenu coming out on bail when the detenu was in custody in
respect of three adverse cases and when there was no bail application pending
before any Court of criminal law. The detaining authority without any material
or basis has observed that there was a real possibility of the detenu coming out
on bail and thus, it has affected the order.
(iv) In the first adverse case i.e. in Crime No.275/2006 registered in
Dindigul Town West Police Station, charge sheet was laid but no particulars were
furnished to the detenu as to list of witnesses
(iv) On all the above grounds, the order of detention has got to be set
aside, according to the learned counsel for the petitioner.
6. The Court heard the learned Additional Public Prosecutor appearing for
the State on the above contentions, who made sincere attempt to sustain the
order of detention.
7. After looking into the materials, the Court is inclined to set aside
the order of detention after making a comment that it was a case of carrying
non-application of mind. It is not in controversy that the detenu was involved
in seven adverse cases and in one ground case in Crime No.346/2008 registered in
Dindigul Town South Police Station. It could also be seen that remand was
extended from 3.7.2008 till 31.7.2008 in that case. The order of remand
extension would clearly indicate that he was produced before the Court.
Contrarily, it is found in the order of detention as if the extension of remand
was extended by video conferencing. Now, it is highly doubtful whether the
detenu was actually produced before the Court as found in the remand extension
or whether remand was extended by video conferencing. Thus, it only indicates
the non-application of mind on the part of the detaining authority. Even at
this stage, the State is unable to explain about this.
8. Added circumstances is that when the bail was granted by the Court of
Principal Sessions Judge, Dindigul in Cr.M.P.No.1078/2008, the detenu was
directed to furnish cash deposit of Rs.1,000/- and also furnish two sureties
each executing a bond for a sum of Rs.10,000/-. Contrarily, the order of
detention indicates that the bail was granted on condition of furnishing two
sureties each executing a bond for a sum of Rs.10,000/- but it does not whisper
about the condition directing him a cash deposit of Rs.1,000/-. Thus, it would
indicate that the bail order was not properly looked into by the detaining
authority.
9. Added circumstances is while the detenu was under custody in respect
of three adverse cases, while he was having knowledge of bail in one adverse
case and in the ground case, no material was available in the hands of the
detaining authority to indicate that there was a real possibility of the detenu
coming out on bail.
10. All the above grounds of attack, in the considered opinion of the
Court, would suffice to set aside the order of detention. Accordingly, it is
made undone by upsetting the order of detention. The detenu is directed to be
set at liberty forthwith unless he is required in connection with any other case
in accordance with law. Accordingly, the Habeas Corpus Petition is allowed.
asvm
To
1.Secretary to
Government Public (Law and
Order – F) Department,
The State of Tamil Nadu,
Secretariat, Chennai – 600 009.
2.The District Collector &
District Magistrate,
Dindigul (Dt),
Dindigul.
3.The Inspector of Police,
Dindigul Town South Police Station,
Dindigul District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.