BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/08/2009 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN AND THE HONOURABLE MR.JUSTICE C.S.KARNAN H.C.P.(MD) No.341 of 2009 P.Kaliappan .. Petitioner Vs. 1.The State of Tamil Nadu rep. by Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009. 2.The Commissioner of Police, Madurai City. 3.The Superintendent of Prison, Madurai Central Prison, Madurai. 4.The Secretary, Advisory Board, 32, Rajaji Salai, Singaraveler Maligai, Chennai Collectorate, Chennai. .. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India calling for the entire records connected with the detention order of Respondent No.2 in Detention Order No.22/BDFGISSV/2009 dated 17.04.2009 and quash the same and direct the respondents to produce the body and person of the detenu by name Prabhakaran, Son of Kaliappan, aged about 25 years detained at Madurai Central Prison before this Court and set him at liberty forthwith. !For Petitioner ... Mr.R.Alagumani ^For Respondents... Mr.N.Senthur Pandian, Addl.Public Prosecutor :ORDER
(Order of the Court was made by P.MURGESEN, J.)
The petitioner is the father of the detenu, who was detained under Section
3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-
offenders, Forest-offenders, Goondas, Immoral Traffic offenders, Sand Offenders,
Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), by
branding him as a ‘GOONDA’.
2. There are two adverse cases and one ground case as against the detenu.
The first adverse case was in Crime No.655 of 2008 on the file of C-3 SS Colony
(Crime) Police Station registered under Section 379 r/w 34 IPC. The second
adverse case was in Crime No.197 of 2009 on the file of C-5 Karimedu (Crime)
Police Station registered under Sections 341, 392 r/w 397 and 506(ii) IPC. The
ground case was registered under Sections 392 r/w 397 and 506(ii) IPC in Crime
No.215 of 2009 on the file of C3 SS Colony (Crime) Police Station. In the ground
case, the detenu was arrested on 26.02.2009 i.e. on the same day of occurrence
and remanded to judicial custody on the same day. Thereafter, his remand period
was extended upto 23.04.2009.
3. Learned counsel for the petitioner challenges the detention order on
three grounds; firstly, the Detaining Authority had not satisfied itself as to
the real possibility of the detenu coming out on bail. According to him, the
detenu has not filed any bail application and that there is no material to show
that there was possibility of the detenu coming out on bail. Secondly, the
remand extension orders were not furnished to the detenu and thirdly, there was
delay in considering the representation of the detenu.
4. With regard to the first ground put forth by the learned counsel for
the petitioner that the detaining authority had not satisfied itself as to the
real possibility of the detenu coming out on bail, learned Additional Public
Prosecutor relied on the statement given by one Vijayakumar in which the said
Vijayakumar said that he is working as a Master in a hotel and that the detenu
Prabhakaran is in the Jail in connection with theft cases and he is taking steps
to release him on bail. This statement is present in Page No.91 of the booklet.
Therefore, according to the learned Public Prosecutor, there was imminent
possibility of the detenu coming out on bail. The statement was given by one
Vijayakumar and he said that his son Karthik’s brother Prabhakaran is in jail in
connection with the theft cases pending on the file of SS Colony Police Station
and Karimedu Police Station. The father of the detenu is one Kaliappan, S/o
Pothi Nayakkar, but the statement was given by Vijayakumar. Learned Additional
Public Prosecutor has submitted that instead of using the word ‘friend’ the word
‘brother’ has been used by the said Vijayakumar, which is an after thought.
This is a material record. Even the name of the father of the detenu is
different. That statement is not a reliable one. So, the error committed will
not help the respondents. So, it is clear that there is no material to hold that
the detenu will come out of bail. Therefore the contention of the learned
Additional Public Prosecutor that the detenu was likely to come out on bail,
falls to the ground.
5. The second ground of the counsel for the petitioner is that the
Detaining Authority had not furnished the remand extension orders in the ground
case as well as the second adverse case for the period from 12.03.2009 to
09.04.2009 for preferring effective representation. In 2007(5) CTC 657, a Full
Bench of this Court has pointed out that non-furnishing of relied-on copies of
documents to the detenu, in spite of the request of the detenu, would vitiate
the order of detention. In the light of the above decision, it is clear that
non-furnishing of the remand extension orders for the period from 12.03.2009 to
09.04.2009 which was relied on by the Detaining Authority, to the detenu, would
vitiate the order of detention. On this ground also, the detention order is
liable to be set aside.
6. The third ground relied on by the counsel for the petitioner is that
there was delay in considering the representation of the detenu. In the
proforma submitted by the learned Additional Public Prosecutor, it is stated
that the file was submitted on 26.05.2009; Under Secretary dealt with on
26.05.2009; Additional Secretary dealt with on 26.05.2009; Minister for PWD and
Law dealt with the representation on 27.05.2009; rejection letter prepared on
01.06.2009; rejection letter sent to the detenu on 02.06.2009 and rejection
letter served to the detenu on 04.06.2009. Though the file was submitted on
26.05.2009, the letter to the detenu was sent only on 02.06.2009. For this, the
learned Additional Public Prosecutor has submitted that it is only a reasonable
delay. 28.05.2009 and 29.05.2009 are working days and 30.05.2009 and 31.05.2009
are holidays. The letter was prepared on 01.06.2009 but it was served to the
detenu only on 04.06.2009. A perusal of the columns 13 to 16 of the proforma
would show that there was delay in considering the representation of the detenu.
The delay was also not explained properly with reasons. Therefore, we are of the
view that on this ground also, the detention order is liable to be set aside.
7. For all the above reasons, we are of the considered view this H.C.P is
liable to be allowed and accordingly it is allowed and the order of detention in
No.22/BDFGISSV/2009 dated 17.04.2009 passed by the second respondent is set
aside. The detenu is directed to be released forthwith unless his presence is
required in connection with any other case.
KM
To
1.The Secretary to Government,
Government of Tamil Nadu,
Home, Prohibition and Excise Department,
Fort St.George,
Chennai-600 009.
2.The Commissioner of Police,
Madurai City.
3.The Superintendent of Prison,
Madurai Central Prison,
Madurai.
4.The Secretary,
Advisory Board,
32, Rajaji Salai,
Singaraveler Maligai,
Chennai Collectorate,
Chennai.