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Mahalingam vs Commissioner Of Police on 8 August, 2005

Madras High Court
Mahalingam vs Commissioner Of Police on 8 August, 2005
       

  

  

 
 
 In the High Court of Judicature at Madras

Dated: 08/08/2005 

Coram 

The Hon'ble Mr.Justice P.SATHASIVAM    
and 
The Hon'ble Mr.Justice AR.RAMALINGAM     

H.C.P. No.438 of 2005 

Mahalingam                                             ..Petitioner

-Vs-

1. Commissioner of Police,
   Greater Chennai,
   Egmore, Chennai.

2. State represented by
   The Secretary to Government,
   Prohibition & Excise Department,
   Fort St.George, Chennai-9.                   ..Respondents

        Habeas Corpus Petition filed under Article 226 of the Constitution  of
India,  to issue a Writ of Habeas Corpus, directing the respondents to produce
the detenu, Kannan @ Kulla Kannan, son of Mahalingam, who is now  detained  in 
Central  Prison,  Chennai  in  pursuance  of the detention order passed by the
first respondent  in  Memo  No.122/B.D.F.G.I.S.    V./2005  dated   23.03.2005
branding  the  detenu  as  a Goonda under the Tamil Nadu Act 14 of 1982 before
this Court, call for the records relating to the said  order,  set  aside  the
same and set the detenu at liberty.

!For Petitioner :  Mr.R.Rajasekar

^For Respondents :  Mr.V.Arul,
                Govt.Advocate (Crl.Side)


:ORDER  

(Order of the Court was made by P.SATHASIVAM, J.,)
The father of the detenu, namely, Kannan @ Kulla Kannan, challenges
the impugned order of detention dated 23.03.2005, detaining him, as “Goonda”
under Section 3 (1) of the Tamil Nadu Prevention of Dangerous Activities of
Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic
Offenders and Slum Grabbers Act, 1982 (in short ” Tamil Nadu Act 14 of 1982″).

2. Even at the outset, learned counsel appearing for the petitioner,
by drawing our attention to paragraph 4 of the grounds of the detention, would
submit that inasmuch bail application filed by the detenu was pending on the
date of passing of the detention order, the same has not been considered and
referred to by the detaining authority and, as such, the order of detention is
liable to be quashed on the ground of non-application of mind.

3. The relevant portion from paragraph 4 of the grounds of detention
is as follows:-

“I am aware that Thiru Kannan @ Kulla Kannan is in remand in H1 Ennore Police
Station Crime No.191/2005 and he has not moved any bail application so far. I
am also aware that there is imminent possibility of his coming out on bail by
filing bail application since in similar cases bails are granted by the
Sessions Court or Higher Courts after a lapse of time”.

4. It shows that the detenu has not moved any bail application till
the date of passing of the detention order i.e., 23.03.2005. On the other
hand, it is brought to our notice that the detenu has filed a bail application
before the District Sessions Judge, Chengalpattu in Crl.M.P.No.2702 of 2005 on
10.03.2005 and the same was adjourned to 1 5.03.2005. It is also his claim
that at the request of the learned Public Prosecutor, again the said
application was adjourned to 22.03.2 005, 29.03.2005 and 05.04.2005 and
thereafter, in view of the order of detention, the said application was
dismissed as withdrawn. The above details show that on the date when the
detaining authority has passed the impugned detention order, the detenu, in
fact, has filed the application for bail before the said Court and the same
was pending. Though the said fact was known to the learned Public Prosecutor,
it is not clear why the sponsoring authority has not forwarded the relevant
material to the detaining authority.

5. In the light of the above factual information, the statement made
in paragraph 4 in the grounds of detention, namely, that the detenu has not
moved any bail application so far, shows non-application of mind on the part
of the detaining authority, which vitiates the ultimate detention order and on
this ground, the detention order is liable to be quashed.

6. Accordingly, the impugned order of detention is quashed and the
habeas corpus petition is allowed. The detenu is directed to be set at
liberty forthwith, unless he is required in connection with any other case.

Index:Yes.

Internet:Yes.

gl

To

1. The Secretary to Government,
Prohibition and Excise Department,
Fort St.George,
Chennai-9.

2. The Commissioner,
Central Prison,
Chennai.

3. The Superintendent,
Central Prison,
Chennai.

(in duplicate for communication to detenu)

4. The Joint Secretary to Govt.,
Public (Law & Order),
Fort St.George,
Chennai-9.

5. The Public Prosecutor,
High Court, Madras.

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