BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/10/2009 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN and THE HONOURABLE MR.JUSTICE C.S.KARNAN H.C.P.(MD) No.598 of 2009 Perumal .. Petitioner vs. 1.State of Tamil Nadu, Represented by The Secretary to Government of Tamil Nadu, Home, Prohibition & Excise Department, Fort St. George, Chennai - 600 009. 2.The District Collector and District Magistrate, Thoothukudi District. 3.The Superintendent of Prison, Palayamkottai Central Prison, Thirunelveli District. 4.The Secretary, Advisory Board, 32, Rajaji Salai, Singaravelar Maligai, Chennai Collectorate, Chennai. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus calling for the entire records connected with the detention order of the Respondent No.2 in H.S.(M) Confdl.No.27/2009 dated 03.08.2009 and quash the same and direct the Respondents to produce the body and person of the petitioner's son by name Arun Son of Perumal, aged about 25 years, detained in Palayamkottai Central Prison before this Hon'ble Court and set him at liberty forthwith. !For petitioner ... Mr.R.Alagumani ^For respondents ... Mr.Isaac Manuel Additional Public Prosecutor :ORDER
(Order of the Court was made by P.MURGESEN, J)
Challenging the order of detention, the father of the detenu has filed the
petition. The detenu was detained by the second respondent Commissioner of
Police by his detention order H.S.(M) Confdl. No.27/2009, dated 03.08.2009,
under the provisions of the Tamil Nadu Prevention of Dangerous Activities of
Boot-Leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic
Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu
Act 14 of 1982) terming him as a “Goonda”.
2. The detenu was involved in three adverse cases, which are as follows:-
Sl Name of the Police station Section of law
No. and Crime No.
1 Thatchanallur P.S. 147, 148, 294(b), 323, 324 and
Crime No.314/2009 506(2) IPC
2 Ottapidaram P.S. 302 and 506(2) IPC
Crime No.124/2009
3 Kadambur P.S. 387 and 506(2) IPC
Crime No.69/2009
Apart from that, the detenu was involved in one ground case in Crime No.127/2009
under Sections 392 and 506(2) IPC registered in Ottapidaram Police Station for
the incident that took place on 26.06.2009.
3. Learned counsel for the petitioner has submitted that the impugned
order of detention passed by the second respondent is vitiated on two grounds.
viz., (i) The detenu has filed bail application only in the ground case in Crime
No.127 of 2009 under Sections 392 and 506(2) I.P.C. on the file of the
Ottapidaram Police Station, but no bail application was filed in the second and
third adverse cases. However, the detaining authority has observed in his order
that there is a real possibility of the detenue coming out of bail without any
materials and (ii) There is delay in considering the representation of the
petitioner.
4.Let us decide the submissions of the learned counsel for petitioner.
The detenu was arrested in Crime No.127 of 2009 for the alleged offences under
Sections 392 and 506(2) I.P.C. on the file of the Ottapidaram Police Station and
he also involved in three adverse case. The detenu has filed bail application
only in respect of the ground case in Crime No.127 of 2009 on the file of the
Ottapidaram Police Station and he has not filed any bail application for the
second and third adverse cases. The 2nd adverse case was registered in Crime
No.124 of 2009 under Sections 302 and 506(ii) on the ground that on 15.06.2009 a
murder was committed. The 3rd adverse case was registered in Crime No.69 of
2009 under Sections 387 and 506(2) I.P.C. on the file of the Kadambur Police
Station. The detenu was arrested on 26.06.2009 in the ground case. The
detention order was clamped on 03.08.2009. On the date of detention order the
detenu has not filed any bail application in the 2nd and 3rd adverse cases.
5.The detaining authority has observed in his order as follows:
“But he has not filed any bail applications in Ottapidaram
P.S.Cr.Nos.124/09 and Kadambur P.S.Cr.No.69/09 in the court. It is very likely
that he may come out on bail by filing bail applications for Ottapidaram
P.S.Cr.No.124/09 and Kadambur P.S.Cr.No.69/09 in the court of Judicial
Magistrate, Vilathikulam or higher court, and granting bail for the case of
Ottapidaram P.S.Cr.127/09 in the court of Judicial Magistrate, Vilathikulam.”
According to the detaining authority there is real possibility of the detenu
coming out on bail. But absolutely, there is no material for the detaining
authority to arrive at a conclusion that there is real possibility of detenu
coming out on bail.
6.Learned counsel for the petitioner relied on the decision of the Full
Bench of this Court in K.Thirupathi v. District Magistrate and District
Collector, Tiruchirapalli District & another reported in 2005-2-L.W. 946 and
stressed that there is no cogent material before the Authority passing the
detention order for inferring that the detenu was likely to be released on bail
and the inference must be drawn from material on record and must not be the ipse
dixit of the Authority passing the detention order.
7.In view of the above decision, there should be some material for the
detaining authority to arrive at the conclusion that there is real possibility
of detenu coming on bail. On careful consideration of the materials available
on record, we are not able to find even a single material to arrive at the
satisfaction about the real possibility of the detenu coming out on bail.
Hence, the detention order is liable to be set aside on this ground.
8. Another ground raised by the learned counsel for the petitioner is that
there is delay in considering the representation. In the proforma filed by
learned Additional Public Prosecutor, it is stated as follows:
1.Category : GOONDA 2.Name of the detenu : Thiru.Arun
3.Order of Detention Dated : H.S.(M)Confdl.No.27/
2009, dated
03/08/2009
4.City : Thoothukudi District
5.Representation dated : 21.08.2009
6.Representation received on : 15.09.2009
7.Remarks called for on : 16.09.2009
8.Reminder dated : 24.09.2009
9.Remarks received on : 29.09.2009
10.File Submitted on : 01.10.2009
11.Under Secretary dealt with on: 01.10.2009
12.Additional Secretary dealt
with on : 01.10.2009
13.Minister for (PWD&LAW) dealt
with on : 05.10.2009
14.Rejection Letter prepared on: 08.10.2009
15.Rejection letter sent to the
detenu : 09.10.2009
18.Rejection letter served to the
detenu on : Served copy awaited
It is seen that the Hon’ble Minister for Public Works department and Law dealt
with the representation on 05.10.2009, but the rejection letter was prepared
only on 08.10.2009. Further, the remarks were called for on 16.09.2009, but the
same was received only on 29.09.2009. Since, the said delay is unexplained, it
vitiates the order of detention. Hence, the order of detention is liable to be
set aside.
9.Accordingly, this Habeas Corpus Petition is allowed and the order of
detention in H.S.(M) Confdl.No.27/2009 dated 03.08.2009, passed by the second
respondent is quashed. The detenu is directed to be released forthwith unless
his presence is required in connection with any other case.
sj
To
1.The Secretary to Government,
Home, Prohibition & Excise Department,
Fort Saint George,
Chennai – 9.
2.The District Collector and District Magistrate,
Thoothukudi District.
3.The Superintendent of Prison,
Palayamkottai Central Prison,
Thirunelveli District.
4.The Secretary,
Advisory Board,
32, Rajaji Salai,
Singaravelar Maligai,
Chennai Collectorate,
Chennai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.