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.30 of 2009
M.Periasamy .. Petitioner
vs.
1.The State of Tamil Nadu
rep.by Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai - 9.
2.The Commissioner of Police,
Trichirappalli City,
Trichirappalli.
3.The Superintendent of Police,
Central Prison,
Trichirappalli. .. Respondents
Petition filed under Article 226 of the Constitution of India to issue a
Writ of Habeas Corpus to call for the entire records in detention order passed
in detention order C.P.O./T.C./I.S./D/O. No.35/2008 dated 17.7.2008 on the file
of the 2nd respondent herein and set aside the same as illegal and direct the
respondents to produce the body of the petitioner's son namely Muthu @
Muthusami, son of Periasamy, aged about 33 years detained in the Central Prison,
Trichirappalli before this Court and set him at liberty from Central Prison,
Trichirappalli.
!For petitioner ... Mr.S.Kameshwaran
^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 C.P.O./T.C./I.S./D/O.No.35/2008 dated 17.7.2008 whereby the
son of 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. Consequent upon the recommendation made by the sponsoring authority
that the detenu was involved in two adverse cases viz., Crime No.240/2008 under
Sections 420 IPC and 109 IPC registered by Walajah P.S., and Crime No.197/2008
under Section 420 IPC and in one ground case in Crime No.239/2008 under Sections
397 and 506(ii) IPC registered by Woraiyur L & O P.S. for the incident that
took place on 11.5.2008, 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 brought to the notice of the Court the following two grounds:-
(i) Firstly, there was undue delay in consideration of the representation
made.
(ii) Secondly, out of the two adverse cases, he was in remand in the first
adverse case and bail application was actually filed in the second adverse case
and the same was dismissed on 8.7.2008. Subsequently, bail applications in
Cr.M.P.Nos.4226 and 4227/2008 moved for Woraiyur PS Crime Nos.197 and 239 of
2008 i.e. the second adverse case and ground case respectively, bail
applications were allowed and the detenu was directed to furnish surety but he
could not furnish surety at all. Under the circumstances, 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. It is merely an apprehension in the mind of the detaining authority.
5. The Court heard the learned Additional Public Prosecutor on the above
contention and paid its anxious consideration on the submissions made.
6. It is not in controversy that in the instant cases, three cases were
registered against the detenu as referred to above. He was in remand in the
first adverse case and bail application was actually filed in the second adverse
case and the same was dismissed on 8.7.2008. Subsequently, bail applications in
Cr.M.P.Nos.4226 and 4227/2008 moved for Woraiyur PS Crime Nos.197 and 239 of
2008 i.e. the second adverse case and ground case respectively, and bail
applications were allowed and the detenu was directed to furnish surety but he
could not furnish surety at all. Under the circumstances, 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. It is merely 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.
7. Insofar as the delay is concerned, the Court is able to see that there
was delay in consideration of the representation. Representation was received on
25.8.2008. Remarks were called for on 28.8.2008, reminder were sent on 5.9.2008
but remarks were only received on 10.9.2008. Thus, there was 13 days delay.
According to the learned Additional Public Prosecutor, there was four
intervening holidays. Even so assuming that, there were 9 days delay, which
remain unexplained. In the absence of any cogent and convincing reason for the
delay, the order of detention is vitiated and same has got to be set aside.
8. 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 Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai – 9.
2.The Commissioner of Police,
Trichirappalli City,
Trichirappalli.
3.The Superintendent of Police,
Central Prison,
Trichirappalli.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.