IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:17.06.2008
CORAM:
THE HON'BLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HON'BLE MR.JUSTICE S.PALANIVELU
HCP.NO.79 OF 2008
P.Lakshmi ...Petitioner
Vs.
1.The State of Tamil Nadu,
rep. by its Secretary to Government,
Home,Prohibition and Excise Department,
Fort St.George,
Chennai 600 009.
2. The Commissioner of Police,
Greater Chennai,
Egmore, Chennai 600 008. ..Respondents
Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Habeas Corpus calling for the records of the second respondent relating to the detention No.324 of 2007 dated 14.7.2007 and to quash the same to direct the production of the detenue the petitioner's son P.Anand now confined in Central Prson, Puzhal before this Court and to set him at liberty.
.
For petitioner: Mr.T.P.Sekar
For Respondents : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor
---
O R D E R
(Order of the Court was made by M.CHOCKALINGAM,J)
This petition seeking the writ of Habeas Corpus has been filed by the mother of the detenu, challenging the order of the second respondent relating to the detention made in detention No.324 of 2007 dated 14.7.2007.
2. Affidavit filed in support of the petition is perused. The order under challenge is also perused. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondents-State.
3. The order under challenge came to be passed by the detaining authority terming the detenue as Goonda and after looking into the materials placed by the sponsoring authority pertaining to three adverse cases viz., (1) Crime No.89 of 2007 of Chitlapakkam Police Station under Sections 384 and 392 IPC, (2) Crime No.180 of 2005 of Chitlapakkam Police Station under Section 379 IPC and in Crime No.295 of 2007 of Pallavaram Poice Station under Section 302 IPC and a ground case as stated in the order and also the detaining authority has recorded its opinion that the activities of the detenu were prejudicial to the maintenance of the public order and peace and hence a necessity arose to detain him under Act 14 of 1982 in order to prevent him from indulging in such activities in future. The said order is subject matter of challenge in this Habeas Corpus Petition.
4. Assailing the order under challenge, learned counsel for the petitioner made the following submissions: The order under challenge came to be passed on 14.7.2007, pursuant to the arrest of the detenu on 2.6.2007 in the ground case. The detaining authority has pointed out that the detenu has not moved any bail application till then and he was also aware that normally in murder cases bail would no be granted, but in this case, since all the accused were arrested and major part of the investigation was also over and the remand was also made before one month, there was real possibility of detenu coming out on bail. Learned counsel would submit that the word “there is real possibility of the detenue coming out on bail” found in the order was made by the detaining authority only on the apprehension for a bail application in future and without any basis at all, it has simply made a statement of fact and it is pertinent to point out that on the day when the matter was considered by the detaining authority, there was no bail application at all and hence it would amount to non-application of mind. Secondly, the sponsoring authority has placed a report seeking for detention of the petitioner under the provisions of the Act. The report as supplied would clearly indicate that it made a mention about only one adverse case and one ground case, but the detaining authority in order to pass an order of detention has looked into the materials in respect of four cases namely three adverse and one ground case and thus in respect of the other two adverse cases, the report was silent and in respect of the same, the detaining authority should have sought for a clarification. Added further the counsel that in the instant case, the arrest was made on 2.6.2007 and remanded to Judicial custody on 3.6.2007, but a copy of the remand report was not actually served either on the detenu or it was placed before the detaining authority and the detaining authority had no occasion to look into the remand report which was placed before the Judicial Magistrate concerned and it would also make the order under challenge infirmed and as could be seen from the seizure, the weapons of crime were seized and report was also filed before the Judicial Magistrate concerned, but on 11.6.2007 an affidavit was filed along with the report for the police custody for the interrogation of the accused stating that the weapon of crime were yet to be seized and thus it is a matter of surprise that a report was filed before the criminal Court and that investigation reveals that the weapon with reference to the above said crime were seized, which were actually seized on 6.6.2007. Under such circumstances, the detaining authority has neither looked into the matter properly nor applied its mind and hence the order has got to be set aside.
5. Heard the learned Additional Public Prosecutor on the above contentions.
6. The Court paid its anxious consideration to the submissions made and all the materials available. After doing so, this Court is of the considered opinion that the order under challenge has got to be set aside. Concededly, the order under challenge came to be passed on 14.7.2007 on the strength of the recommendations made by the sponsoring authority. A perusal of the order would clearly indicate that there were three adverse cases and one ground case with all the particulars of the case viz. Crime number, provision of law and Police station etc., but originally a report was filed by the sponsoring authority whereby only two crime numbers were mentioned i.e. one ground case and one adverse case . Under such circumstances, a duty was cast upon the detaining authority to call for an explanation from the sponsoring authority and it would also make it clear that while the report which was placed by the sponsoring authority before the detaining authority speaks about the circumstances which necessitated to pass an order of detention under Act 14 of 1982, that is not relevant of two cases viz., one adverse case and one ground case. The order has been passed on the strength of four cases viz. three adverse cases and 1 ground case. This Court is of the considered opinion that the order by itself would suffice to indicate non-application of mind. Added circumstances are that no bail application was pending before any forum, the detaining authority pointed out that there were all possibility of the accused/detenu coming out of bail in view of the fact that major part of the investigation was over and one month has lapsed from the time of remand. This Court is unable to see any reason in such statement made by the detaining authority. It was merely re-production of statement as usual, since, there was no bail application at the time when the order came to be passed. Thirdly, the accused was arrested on 2.6.2007 and remanded on 3.6.3007 and remand report was also placed on the ground on which he was remanded, but as rightly pointed out, a copy of the remand report where a requisition for remanding him were made out , were not actually placed before the detaining authority or a copy of the same was given to the detenu enabling him to put forward his representation ably. Under such circumstances, it would make an order infirmed. This Court is unable to see any force in the last contention. It is true that the seizure of the weapons of crime was on 6.6.2007 from one of the accused and a report was filed for police custody for further investigation in order to nab over the accused. Under such circumstances, we find any force in the fourth submission made. The first three contentions which were recorded and considered by this Court in its opinion to suffice to quash the order of detention and accordingly it is quashed. Hence, the order has got to be quashed and accordingly quashed.
7. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in Memo No.324/BDFGISSV/2007 dated 14.07.2007, The detenu, namely, Anand, who is now confined at Central Prison, Chennai is directed to be set at liberty forthwith unless his presence is required in connection with any other case.
(MCJ) (SPVJ)
17-06-2008
Index:Yes/No
Website:Yes/N0
VJY
M.CHOCKALINGAM,J &
S.PALANIVELU,J
(vjy)
To
1.The State of Tamil Nadu,
rep. by its Secretary to Government,
Home,Prohibition and Excise Department,
Fort St.George,
Chennai 600 009.
2. The Commissioner of Police,
Greater Chennai,
Egmore, Chennai 600 008.
HCP.NO.79 OF 2008
17.06.2008