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.964 of 2008 Nagappan alias Asari alias Saleem ... Petitioner vs. 1.The Commissioner of Police, Madurai City, Madurai. 2.State of Tamil Nadu, Rep.by its Secretary to Government, Government of Tamil Nadu, Prohibition and Excise Department, 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 pertaining to the proceedings of the 1st respondent made in his proceedings in No.67/BDFGISSV/2008, dated 19.08.2008, quashing the same and setting the petitioner by name Nagappan @ Asari @ Saleem, S/o.Pandi Asari, at liberty from Central Prison, Madurai. !For Petitioner ... Mr.K.Jeganathan ^For Respondents ... Mr.N.Daniel Manoharan, Addl.Public Prosecutor. :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J.)
In this writ petition, challenge is made to the order of
detention, dated 19.08.2008, made by the 1st respondent, terming the detenu by
name Nagappan @ Asari @ Saleem, the petitioner herein, as a ‘Goonda’.
2.Pursuant to the recommendations made by the sponsoring
authority that the detenu is involved in one adverse case and in one ground case
in Crime No.1378/2008 registered under Sections 392 read with 397 IPC on the
file of Tallakulam Police Station, for the occurrence which is said to have
taken place on 25.07.2008, 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 19.08.2008.
3.Advancing arguments on behalf of the petitioner, the detenu,
the learned counsel would urge only one ground, as the prime ground, before this
Court in his attempt to assail the order of detention. He would submit that the
occurrence in the ground case in Crime No.1378/2008 took place on 25.07.2008 and
the detenu was arrested on the next day and remanded to judicial custody. He
would further submit that insofar as the ground case is concerned, no bail
application was filed at all and in respect of the adverse case, the detenu
moved a bail application before this Hon’ble Court in Cr.O.P.(MD) No.3722/2008
and the same was ordered by this Court granting bail on 03.04.2008. Therefore,
it is the submission of the learned counsel that only in the adverse case the
detenu was on bail and in the ground case no bail application was filed and he
was in judicial custody but, however, the detaining authority has stated in the
grounds of detention that there was a possibility of the detenu coming out on
bail, when no materials were placed nor the detaining authority has gone into
the papers properly and in such circumstances, the detention order is liable to
be quashed on the ground of non-application of mind on the part 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
by the counsel on either side.
6.After going into the materials available, including the
impugned order of detention, the Court has to necessary agree with the counsel
for the petitioner. It is true that no bail application was filed in the
ground, as is evident from paragraph No.7 of the grounds of detention.
According to the counsel for the petitioner, bail application was filed only in
the adverse case and the detenu was granted bail by this Court on 03.04.2008 in
Crl.O.P.(MD)No.3722/2008. Thus, it would be quite evident that the detenu had
not filed any bail application in the ground case and he was in judicial
custody. However, the detaining authority has observed that there was a
possibility of the detenu coming out on bail both in the ground case as well as
in the adverse case. Thus, it is quite clear that necessary and relevant
materials were not placed by the sponsoring authority before the detaining
authority in order to enable him to make appraisement of the matter properly
that the detenu had already been released on bail in the adverse case.
Therefore, in the opinion of the court, non-placement of relevant and necessary
papers before the detaining authority for his proper consideration and
assessment of the case has caused great prejudice to the detenu and on this
ground the order of detention has got to be set aside.
7.Accordingly, the habeas corpus petition is allowed and the
order of detention in No. 67/BDFGISSV/2008, dated 19.08.2008, passed by the 1st
respondent is quashed. The detenu Nagappan @ Asari @ Saleem is directed to be
released forthwith, unless his presence, in accordance with law, is required in
connection with any other case.
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To:
1.The Commissioner of Police,
Madurai City, Madurai.
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.