BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE Ms.JUSTICE R.MALA HCP (MD) Nos.42 to 44 of 2009 Muthukumar .. Petitioner in HCP 42/2009 Mayandi @ Thatha .. Petitioner in HCP 43/2009 Arumuganainar .. Petitioner in HCP 44/2009 vs 1.The State of Tamil Nadu represented by its Secretary to Government, Prohibition and Excise Department Secretariat, Fort St. George Chennai 600 009. 2.The District Collector Thirunelveli District Thirunelveli 3.The Superintendent of Police Thirunelveli District Thirunelveli .. Respondents in
all petitions
HCP No.42/2009 filed under Article 226 of the Constitution of India
praying for a writ of habeas corpus calling for the records of the detention
order made in M.H.S.Confdl.No.138/2008 dated 8.11.2008 passed by the second
respondent herein and set aside the same and direct the respondents to produce
the detenu Muthukumar now confined in Central Prison, Palayamkottai as Detenu in
TPDA No.3253 before this Court and set the detenu Muthukumar at liberty.
HCP No.43/2009 filed under Article 226 of the Constitution of India
praying for a writ of habeas corpus calling for the records of the detention
order made in M.H.S.Confdl.No.137/2008 dated 8.11.2008 passed by the second
respondent herein and set aside the same and direct the respondents to produce
the detenu Mayandi alias Thatha now confined in Central Prison, Palayamkottai as
Detenu in TPDA No.3252 before this Court and set the detenu Mayandi alias Thatha
at liberty.
HCP No.44/2009 filed under Article 226 of the Constitution of India
praying for a writ of habeas corpus calling for the records of the detention
order made in M.H.S.Confdl.No.139/2008 dated 8.11.2008 passed by the second
respondent herein and set aside the same and direct the respondents to produce
the detenu Arumuganainar now confined in Central Prison, Palayamkottai as Detenu
in TPDA No.3254 before this Court and set the detenu Arumuganainar at liberty.
!For Petitioners… Mr.R.Jayaraman
^For Respondents… Mr.M.Daniel Manohar
Additional Public
Prosecutor
:COMMON ORDER
(Order of the Court was made by M.CHOCKALINGAM, J.)
In all these petitions, challenge is made to the respective orders of
detention made by the second respondent dated 8.11.2008, terming the detenus as
Goonda.
2.In all these cases, the detenus are the petitioners. The orders are
challenged on the following grounds:
(a) The confessional statement in the ground case was recorded as if it
was done by one of the petitioners namely Arumuganainar, who are all shown as
accused in the ground case. The confessional statement of Arumuganainar was
recorded, and the same if perused, would indicate that in first part, it is
stated that it was Arumuganainar while in the other pages it is stated that it
was by a different accused.
(b) Equally, there was a recovery of vehicle bearing registration No.TN 69
A 8270, a motorcycle, which was alleged to have been recovered from
Arumuganainar; but, the athatchi would reveal that it was recovered from one
Muthukumar, the petitioner in HCP 42/2009. Thus these discrepancies were
noticed. If to be so, a clarification should have been called for by the
detaining authority, but failed to do so.
(c) As far as bail applications were concerned, there were two adverse
cases and one ground case out of which the bail application was filed in the
first adverse case on 24.10.2008 and dismissed on 5.11.2008. As far as the
second adverse case and ground case are concerned, no bail application was filed
either, or pending before the Court of criminal law. When the order came to be
passed on 8.11.2008, the authority has observed as if there was a real
possibility of the detenu coming out on bail, and it was actually not supported
by any material. Thus it was only an apprehension and without any reason.
(d) As regards the other accused one Minor Murugan, he was shown to be the
person who has actually supplied weapons and country bombs, etc. But he was out
of India from 11.10.2008 and 30.10.2008. The occurrence has taken place between
these period, and he has also moved for anticipatory bail before the Apex Court,
and the police was directed not to arrest him. All would go to show that it was
actually a cooked up case for the purpose of detaining them, and under the
circumstances, they have got to be released by setting aside the orders.
3.The Court heard the learned Additional Public Prosecutor on all the
above contentions.
4.It is not in controversy that pursuant to the recommendations made by
the sponsoring authority that the petitioners herein were involved in two
adverse cases namely (1) Seevalaperi PS Cr.No.85/2008 under Sec.302 IPC; and (2)
Ayikudi PS Cr.No.135/2008 under Sections 294(b) and 307 IPC, and one ground case
in Thevarkulam PS Cr.No.73/2008 under Sections 294(b) and 307 IPC and Sec.5 of
the Explosive Substances Act, on scrutiny of the materials, the second
respondent had passed the order of detention on 8.11.2008 recording its
subjective satisfaction that the activities of the petitioners were prejudicial
to the maintenance of public order. As rightly pointed out by the learned
Counsel for the petitioners, a scrutiny of the materials would clearly indicate
the following infirmities.
5.Perusal of the materials would clearly indicate that there was a
confessional statement of Arumuganainar. The first part of the confession would
indicate as if it was recorded from Arumuganainar. When the other pages are
looked into, it would indicate as if it was done by other accused. Thus, a
discrepancy is noticed whether it is from Arumuganainar or from the other
accused.
6.Apart from the above, a recovery has actually been made as per the
athatchi from one Muthukumar who is the co-accused in the case. But a perusal
of the materials would clearly indicate that though it was recovered from
Muthukumar, in the confession of Arumuganainar it is shown as if it was
recovered from him. But the statements of the other two accused Muthukumar and
Mayandi are not found in the entire materials, and thus a clarification was
required which should have been asked for, but not done so. Under the
circumstances, the order suffers.
7.Equally, there were two adverse cases and one ground case. There was a
bail application filed in the first adverse case on 24.10.2008, and the same was
dismissed on 5.11.2008. As far as the second adverse case and ground case are
concerned, admittedly bail applications were not filed. It is pertinent to
point out that even the dismissal order was passed only in the first adverse
case on 5.11.2008. It remains to be stated that when the order under challenge
came to be passed on 8.11.2008, within a short span of 3 days and that too while
no bail application was pending in the other two cases, the observation made by
the authority that there is a real possibility of the detenu coming out on bail
was not only without any basis, but also an apprehension in the mind of the
authority. It can even be commented as unwarranted. Under the circumstances,
the order has got to be set aside.
8.As far as the other ground is concerned, a perusal of the Apex Court’s
order would indicate that it was only an interim order at that time. In respect
of the present petitioners, in the considered opinion of the Court, that cannot
be a ground to set aside the impugned order. However on the grounds mentioned
above, the order suffers.
9.Accordingly, these habeas corpus petitions are allowed setting aside
the orders of the second respondent.
The detenus are directed to be set at liberty forthwith unless their presence is
required in connection with any other case.
nsv
1.The Secretary to Government,
Prohibition and Excise Department
Secretariat, Fort St. George
Chennai 600 009.
2.The District Collector
Thirunelveli District
Thirunelveli
3.The Superintendent of Police
Thirunelveli District
Thirunelveli
4.The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai