BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:27/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE Ms.JUSTICE R.MALA Habeas Corpus Petition (MD) No.986 of 2008 Manikadurai, s/o.Muthaiah Thevar ... Petitioner vs. 1.State, rep.by Office of the Commissioner of Police, Tirunelveli City, Tirunelveli-District. 2.The Secretary. Government of Tamilnadu, Prohibition and Excise Department, Fort St.George, Chennai-9. ... Respondents Petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records from the first respondent in No.47/BDFGISSV/2008, dated 12.12.2008, setting aside the said order of detention passed by the 1st respondent and setting the detenu Selvam, now detained in Central Prison, Palayamkottai, at liberty. !For Petitioner ... Mr.V.Kathirvelu ^For Respondents ... Mr.N.Daniel Manoharan, Addl.Public Prosecutor. :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J.)
Challenge is made to the order of detention, dated 12.12.2008,
made by the 1st respondent, terming the detenu by name Selvam, the son of the
petitioner’s brother, as a ‘Goonda’.
2.Pursuant to the recommendations made by the sponsoring
authority that the detenu is involved in two adverse cases and in one ground
case in Crime No.1026/2008 registered under Sections 341, 307 and 506(ii) on the
file of Melapalayam Police Station, the detaining authority, the 1st respondent,
after looking into the materials available, formed an opinion that the
activities of the detenu were prejudicial to the maintenance of public order and
hence he has got to be detained under the provisions of the Tamil Nadu Act
14/1982 terming him as a ‘Goonda’. Accordingly, the detention order, which is
under challenge in this petition, came to be passed by the 1st respondent on
12.12.2008.
3.Advancing arguments on behalf of the petitioner, the
paternal uncle of the detenu, the learned counsel urged two grounds before this
Court in his attempt to assail the order of detention. Firstly, he would submit
that pursuant to the registration of the ground case, the detenu surrendered
before the Judicial Magistrate, Tenkasi, on 31.10.2008 and he was remanded to
judicial custody; that while he was in judicial custody, he made an application
in Cr.M.P.No.4486/2008 before the Sessions Court, Tirunelveli, but the same was
dismissed on 10.12.2008 and thereafter no application was filed; that while the
matter stood thus, the detaining authority has stated in the grounds of that
there was real possibility of the detenu coming out on bail, which is nothing
but mere apprehension of the detaining authority, without any basis or specific
material and, therefore, there is non-application of mind on the part of the
detaining authority, which would vitiate the order of detention.
4.Secondly, the learned counsel for the petitioner submitted
that there is inordinate delay in the consideration and disposal of the
representation made on behalf of the detenu. He would submit that the
representation was received by the Government on 28.12.2008, remarks were called
from the detaining authority on 29.12.2008 and though such remarks were received
on 30.12.2008 and the file was finally dealt with by the Hon’ble Minister for
Law on 02.01.2009 and rejected the representation, such rejection letter came to
be prepared only on 13.01.2009, after a gap of nine days and this delay remains
unexplained and on this ground also the order of detention is liable to be
quashed.
5.The Court heard the learned Additional Public Prosecutor on
the above contentions and paid its anxious consideration on the submissions made
by the counsel on either side.
6.After considering the submissions made and perusing the
materials on record, including the order of detention, the Court agrees with the
contentions raised by the counsel for the petitioner. Insofar as the first
contention that there is non-application of mind on the part of the detaining
authority in forming an opinion that there was real possibility of the detenu
coming out on bail is concerned, it is an admitted fact that the bail
applications filed by the detenu in one adverse case in Crime No.1049/2008 in
Crl.M.P.No.4316/2008 and also in the ground case in Crime No.1026/2008 in
Crl.M.P.No.4486/2008 were dismissed by the Sessions Court on 04.12.2008 and
10.12.2008, respectively and thereafter the detenu has not filed any bail
application in both the cases and as such, on the date of passing the order of
detention, no bail applications were pending consideration. In such
circumstances, the subjective satisfaction of the detaining authority that there
was real possibility of the detenu coming out of bail is without any basis and
not based on any specific material. Therefore, the Court is of the considered
opinion that on this ground the order of detention has got to be quashed.
7.Insofar as the delay in consideration and disposal of the
representation is concerned, it is seen from the proforma furnished by the
learned Additional Public prosecutor that though there was no delay in obtaining
the remarks from the detaining authority and dealing with the file by the
concerned Minister, there was undue delay in preparing the rejection letter and
communicating the same to the detenu. The proforma shows that the Minister had
dealt with the file on 02.01.2009. However, the rejection letter has been
prepared only on 13.01.2009, after a delay of eleven days. Learned Additional
Public Prosecutor would submit that there were four declared holidays in between
02.01.2009 and 13.01.2009. Even then, there was a delay of seven days in
preparing the rejection letter, which is only a ministerial act. Since the
liberty of a person was concerned, the authorities should have been careful and
there should not have been any unexplained delay. On this ground also, the
detention order is liable to be quashed.
8.Accordingly, the habeas corpus petition is allowed and the
order of detention in No.47/BDFGISSV/2008, dated 12.12.2008, passed by the 1st
respondent is quashed. The detenu S.Selvam is directed to be released
forthwith, unless his presence, in accordance with law, is required in
connection with any other case.
gb
To:
1.The Commissioner of Police,
Tirunelveli City,
Tirunelveli-District.
2.The Secretary.
Government of Tamilnadu,
Prohibition and Excise Department,
Fort St.George, Chennai-9.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.