IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11/07/2006
Coram
The Hon'ble Mr. Justice P.SATHASIVAM
and
The Hon'ble Mr. Justice V.DHANAPALAN
Habeas Corpus Petition No.429 of 2006
P.Rajamani ...Petitioner
-Vs-
1.The Secretary to Government
Government of Tamil Nadu
Prohibition and Excise Department,
Secretariat, Fort St. George,
Chennai 600 009.
2.The District Magistrate and
District Collector,
Salem District,
Salem. .. Respondents
Petition under Article 226 of the Constitution of India for the
issuance of a Writ of Habeas Corpus to call for the records pertaining to the
detenu Mani alias Manivannan, who is detained under Tamil Nadu Act 14 of 1982`
as Goonda at Central Prison, Salem by the second respondent vide roder in
C.M.P.No.5/Goonda/C2/2006 dated 09.02.2006 on the file of the second
respondent herein, quash the same and direct the respondents herein to produce
the body of the detenu and set him at liberty.
!For Petitioner : Mr.G.Vijayakumar
For Respondents : Mr.M.Babu Muthu Meeran
Addl. Public Prosecutor
:ORDER
(Order of the Court was made by P.SATHASIVAM,J.)
The petitioner, who is the mother of the detenu by name Mani @
Manivannan, who is detained as a ”Goonda” as contemplated under Section 3(1)
of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug
Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers
and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), by the impugned
detention order dated 09.02.2006, challenges the same in this Petition.
2. Heard learned counsel for the petitioner as well as learned
Additional Public Prosecutor for the respondents.
3. At the foremost, learned counsel for the petitioner, by drawing
our attention to the details stated in paragraph 3 of the grounds of
detention, submitted that though a specific reference has been made to
Karipatti Police Station Crime No.410/2003 and Attur Police Station Crime
No.468/2004, the detenu was not supplied with the material, which vitiates the
ultimate order of detention. In this regard, it is relevant to refer the
actual passage where the detaining authority has referred to all the adverse
cases including the above said two crime numbers, which reads as under:
“During investigation it was found that the above persons were involved in
Yethapur Police Station Crime No.371/2005, Karippatty P.S.Cr. No.410/2003,
92/2004, Veeranam P.S.Cr.No.271/2005, Attur P.S.Cr.No.468 /2004 also apart
from the ground case.”
4. It is the definite case of the petitioner that no materials, not
even a copy of the First Information Report relating to Karipatty Police
Station Crime No.410/2003 and Attur Police Station Crime No.468/2 004 were
supplied to the detenu. No doubt, learned Additional Public prosecutor
brought to our notice that in the affidavit filed by the sponsoring authority,
there is a reference to those crime numbers. It is not in dispute that the
particulars furnished in the affidavit are meant for the detaining authority
for taking decision. Merely because there is a reference in the affidavit,
the detenu is not going to get any assistance in defending his case. Inasmuch
as, the detaining authority has heavily relied on all the adverse cases
including Crime No.410/2003 and 468/2004 on the file of the Karipatty Police
Station and Attur Police Station respectively, we are of the view that it is
but proper on the part of the detaining authority to supply materials relating
to those crime numbers to the detenu in order to give him an opportunity to
putforth his representation effectively. On this ground, we are of the view
that the detention order is liable to be interfered.
5. In addition to the same, the learned counsel appearing for the
petitioner, by drawing our attention to para 5 of the grounds of detention,
has submitted that though the detaining authority has stated that in the
adverse cases the detenu had filed bail applications and bail was granted, on
the date when the detention order was passed viz., on 09.02.2006, no order has
been passed. The learned counsel for the petitioner also pointed out that the
detaining authority has not furnished any bail order except making a general
statement. Inasmuch as the detaining authority has very much relied on those
materials as found in paragraphs 3 and 5, by drawing our attention to the
latest decision of the Supreme Court reported in (2006) 2 Supreme Court
Cases(Criminal) 90 (SUNILA JAIN VS. UNION OF INDIA AND ANOTHER), the learned
counsel appearing for the petitioner contended that non furnishing of those
details to the detenu would vitiate the ultimate order of detention. While
considering the similar contention, the conclusion of Their Lordships in
paragraph 12, which are relevant is as follows:
“The question as to whether an offence is bailable or not is not a vital fact
whereupon an order of bail can be passed. Application of mind to the
averments made in a bail application may be relevant where the grounds stated
therein reveal certain facts which are vital for passing an order of
detention. In a case of such nature, it may be said that the application for
bail was necessary to be placed before the detaining authority and
non-furnishing a copy thereof to the detenu would vitiate the order of
detention.”
6. In the light of the legal position as stated above and in view of
the infirmity in paragraphs 3 and 5 of the detention order as explained above,
we are of the view that the detention order cannot be sustained. In these
circumstances, the detention order is liable to be quashed and accordingly,
the same is quashed.
4. The Habeas Corpus Petition is allowed and the impugned order of
detention is set aside. The detenu is directed to be set at liberty forthwith
from the custody unless he is required in some other case or cause.
raa
To
1. The Secretary to Government,
State of Tamil Nadu, Prohibition
and Excise Department,
Fort St. George,
Chennai-600 009.
2.The District Magistrate
and District Collector,
Salem District, Salem.
3. The Superintendent, Central Prison, Salem.
(In duplicate for communication to detenu)
4. The Joint Secretary to Government,
Public (Law and Order)
Fort St. George, Chennai-9.
5. The Public Prosecutor,
High Court, Madras.