BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22/06/2007 CORAM: THE HONOURABLE MR.JUSTICE D.MURUGESAN and THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Habeas Corpus Petition (MD) No.87 of 2007 P.Chellaiah, S/o.Palanivel ... Petitioner vs. 1.The Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009. 2.The District Collector and District Magistrate, Pudukkottai, Pudukkottai District. ... Respondents Petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus by calling for the records relating to order in P.D.O.No.5/2007 dated 12.02.2007, passed by the second respondent and quash the same and consequently set the detenu by name Manoharan, confined at Central Prison, Trichy, at liberty. !For Petitioner ... Mr.D.Sadiq Raja ^For Respondents ... Mr.N.Senthur Pandian, Addl.Public Prosecutor. :ORDER
(Order of the Court was made by D.MURUGESAN,J)
The petitioner is the father of the detenu by name Manoharan, who
has been detained under the Tamilnadu Prevention of Dangerous Activities of
Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic
Offenders, Sand Offenders, Slum grabbers and Video Pirates Act, 1982 (Tamilnadu
Act 14 of 1982), branding him as a “Sand Offender”. The said order of
detention, dated 12.02.2007, passed by the second respondent is challenged in
this habeas corpus petition.
2.The detention order has been clamped on the petitioner’s son based
on the following materials as found in the grounds of detention.
“3. …. On 27-01-2007, early morning, the Inspector of Police, Alangudi
P.S. along with his police party while conducting night rounds, received an
information from the superior officers stating that the police party should also
be kept surveillance to detect the illicit mining and transportation of sand
from the river beds. Hence the police party rushed to Sammattividuthi diversion
road and then proceeded to Karambakkudi to Pudukkottai Road, found a tractor
bearing Registration No.TN 50 – A 5112 and a tipper loaded with full of sand was
standing near Sammattividuthi diversion road. On examination of the tipper of
the tractor found full of sand. Hence the Inspector of Police interrogated the
driver Manoharan about the mining and transportation of sand. He has stated
that he is transporting the sand to the building contractors and selling open
market for the past 1 year and now also he is transporting the same for the sale
to the building contractors. He has no valid permit or license from the
Government. He also gave a confession statement about the commission of offence
committed by him. In his statement he has stated that he illicitly mined from
Agni River. Hence Inspector of Police, Alangudi arrested the accused, seized
the trailer and tipper along with the sand under a cover of mahazar attested by
police as no general public come forward to sign in the mahazar. The reason for
the arrest was informed to him and all matters relating to his arrest was also
informed to his relative. He was brought to station, registered a case in
Alangudi P.S. Cr.No.29/2007 u/s 379 IPC r/w 21(1)(a)(b) of Tamil Nadu Mines and
Minerals (Regulation) Act, 1957. he was produced before the Judicial Magistrate
Alangudi for remand. As ordered by the Judicial Magistrate, Alangudi, he was
remanded and lodged at the District Prison, Pudukkottai till 09.02.2007. The
remand has been further extended upto 23-02-2007. He has moved a bail
application before the Judicial Magistrate, Alangudi, which was dismissed vide
C.M.P.No.304/07, dated 03-02-2007. The case is under investigation.”
3.The learned counsel appearing for the petitioner had submitted
that on 05.02.2007 a bail application was filed in Cr.M.P.No.366/2007 on the
file of the Principal Sessions Judge, Pudukkottai, on behalf of the detenu
seeking bail. The said application was ordered on 13.02.2007. However, on the
date when the detention order was passed, namely 12.02.2007, the said
application was pending. The detaining authority had not applied his mind
as to the
pendency of the said bail application. It is the further submission of the
learned counsel that the fact that the pendency of the bail application has
relevance in the wake of the allegations made in the petition, namely that when
a special enactment has been invoked to deal with the offences alleged to have
been committed by the detenu, invoking general provisions of the Indian Penal
Court is meaningless and therefore the police officer has no competence to deal
with the cases punishable under the provisions of Mines and Minerals
(Regulation) Act, 1957 or the State Regulations. He would also contend that in
fact, accepting the same, the Public Prosecutor had conceded for the grant of
bail and submitted before the learned Principal Sessions Judge that he has no
objection. To substantiate the said contention, the learned counsel produced a
copy of the bail order dated 13.02.2007. It is the further contention of the
learned counsel that had this application for bail was placed before the
detaining authority, he could not have satisfied himself to pass the impugned
order of detention.
4.The learned Additional Public Prosecutor however submitted that in
the absence of the knowledge on the part of the detaining authority as to the
pendency of the bail application, the detention order cannot be questioned on
the ground of non-application of mind to the said fact.
5.We have carefully considered the above rival submissions.
6.We must firstly state the law on this point. It is well settled
in law that the detaining authority is bound to consider all the relevant
materials placed before him, before arriving satisfaction to pass an order of
detention. There may be materials which may be merely referred to by the
detaining authority and there may be some materials which may be actually relied
upon by the detaining authority to pass the detention order. In the facts and
circumstances of the case, we are not inclined to go into the question whether
the bail application said to have been filed by the detenu before the learned
Principal Sessions Judge on 05.02.2007 could be treated as a document relied
upon or referred to. Factually, the detaining authority could satisfactorily
explain that in the absence of knowledge as to the pendency of bail application
dated 05.02.2007 naturally he could not have applied his mind to the said
pendency of bail application. It is not the case of the petitioner that inspite
of the sponsoring authority forwarded the bail application, the detaining
authority has not considered the same and applied his mind. In fact, it is the
case of the respondents as well that the pendency of bail application was not
within the knowledge of the detaining authority. In such circumstances, the
question of non-application of mind on the part of the detaining authority as to
the pendency of the bail
application on the date when the detention order was passed cannot be accepted
and consequently the detention order cannot be set aside on that ground.
7.However, the question does not end there. It is equally well
settled in law that while the sponsoring authority sponsors for detention of a
person to the detaining authority, it should place all the materials available
before it to the detaining authority to enable the detaining authority to apply
its mind with regard to those materials. In case, if the sponsoring authority
within whose knowledge certain materials were available had not forwarded the
same to the detaining authority the order of detention would also get vitiated
on the ground that the sponsoring authority has not placed all the relevant
materials before the detaining authority.
8.On the above broad principles, the facts of the case should be
looked into. It is the specific case of the petitioner that a bail application
was filed on 05.02.2007 and the same was disposed of on 13.02.2007 by the
learned Principal Sessions Judge, Pudukkottai and the said application was
disposed of after hearing the Public Prosecutor. A copy of the order granting
bail dated 13.02.2007 was placed before us. In the above facts, it could
reasonably be presumed that the pendency of the bail application filed by the on
behalf of the detenu on 05.02.2007 was well within the knowledge of the
sponsoring authority. Even, in case, the respondent police in the bail
application was represented by Public Prosecutor, the burden is on the detenu to
establish that the respondent police had actual knowledge of the pendency of the
bail application. But, that also depends upon the facts of each case. Learned
Additional Public Prosecutor, appearing on behalf of the respondents before us,
in all fairness submitted that in all probabilities it could be presumed that
the appearance of the Public Prosecutor before the Principal Sessions Judge was
on instruction from the respondent police. In that case, when the sponsoring
authority had sworn to the affidavit on 10.02.2007, not only he would have
knowledge of the pendency of the bail application, the non-furnishing of the
said material to the detaining authority would certainly amount to either
suppressing or withholding materials from the consideration of the same by the
detaining authority. On this ground the petitioner has to succeed.
9.The non-supply of this material to the detaining authority assumes
importance in this case, more particularly when the offences alleged are to be
taken cognizance by the authorities empowered under the Mines and Minerals
(Development Regulation) Act, 1957 (Central Act) and the Tamil Nadu Minor
Mineral Concession Rules, 1959. In fact, a question as to whether a police
officer could exercise his power under the above enactments whenever a violation
of illegal quarrying of mining is noticed came up for consideration in the
judgment reported in (2006) 2 M.L.J. (Crl.) 115 – D.Sudharshan v. State and
this Court has held that when special enactment has been invoked to deal with
such offences, invoking general provisions of Indian Penal Code will be
meaningless and the special enactment will override the general provisions of
law and specific provision will override the other provisions.
10.Probably the case should have taken cognizance by the police and
therefore the learned Public Prosecutor, in all fairness, should have submitted
that there was no objection for granting bail to the detenu. Had this material
was placed before the detaining authority, i.e. a ground for seeking bail, it
could have weighed in the mind of the detaining authority, either way, before
passing the order of detention. In the circumstances, non-placement of this
material before the detaining authority would certainly infringe the right of
the detenu for a detailed consideration on the part of the detaining authority
before passing the order of detention. Hence for all the above reasons, we find
merit in the above contention made on behalf of the petitioner.
11.Accordingly, the habeas corpus petition is allowed and the order
of detention dated 12.02.2007 passed by the second respondent in P.D.O.No.5/2007
is quashed. The detenu is directed to be released forthwith, unless his
custody is required in connection with any other case.
To:
1.The Secretary to Government
of Tamil Nadu,
Home, Prohibition and Excise Department,
Fort St.George,
Chennai-600 009.
2.The District Collector and
District Magistrate,
Pudukkottai,
Pudukkottai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.