IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:- 26.08.2010
CORAM:
THE HON'BLE MR.JUSTICE M. CHOCKALINGAM
AND
THE HON'BLE MR.JUSTICE M. SATHYANARAYANAN
H.C.P. No.735 of 2010
R. Kanakambaram ... Petitioner
Vs.
1. The Secretary to the Government,
Home, Prohibition and
Excise Department.,
Secretariat, Chennai 600 009.
2. The District Collector,
Namakkal District,
Namakkal. ... Respondents
Petition under Article 226 of the Constitution of India, seeking to issue a writ of Habeas Corpus, to direct the respondents to call for the records in C.M.P. No.1/Goonda/2010/M1 dated 2.2.2010 on the file of the second respondent herein and quash the same as illegal and direct the respondents to produce the detenu Dhanabal, son of Raj, who is confined at Central Prison, Salem and set him liberty.
For Petitioner : Mr. K. Balakrishnan
For Respondents : Mr. V.R. Balasubramaniam
Additional Public Prosecutor
O R D E R
(Order of the Court was made by M. CHOCKALINGAM,J)
This petition is brought forth by the father of the detenu challenging the order of the second respondent in C.M.P. No.1/Goonda/2010/M1 dated 2.2.2010 whereby his son viz. Dhanabal was ordered to be detained as a Goonda under the provisions of the Act 14 of 1982.
2. The Court heard the learned counsel appearing for the petitioner and looked into the materials available on record, in particular, the order under challenge.
3. It is not in controversy that pursuant to the recommendation made by the Sponsoring Authority that the detenu is involved in ten adverse cases viz. (i) Velur P.S. Crime No.56/2008 for the offence under Section 379 of the Indian Penal Code; (ii) Velur P.S. Crime No.53/2008 for the offence under Section 379 of the Indian Penal Code; (iii) Velur P.S. Crime No.45/2008 for the offence under Section 379 of the Indian Penal Code; (iv) Velur P.S. Crime No.52/2008 for the offence under Section 379 of the Indian Penal Code; (v) Velur P.S. Crime No.44/2008 for the offence under Section 379 of the Indian Penal Code; (vi) Velagoundampatty P.S. Crime No.369/2008 for the offences under Sections 457, 380 of the Indian Penal Code; (vii) Velur P.S. Crime No.313/2009 for the offence under Section 380 of the Indian Penal Code; (viii) Velur P.S. Crime No.312/2009 for the offence under Section 380 of the Indian Penal Code; (ix) Velur P.S. Crime No.307/2009 for the offence under Section 379 of the Indian Penal Code and (x) Velur P.S. Crime No.311/2009 for the offence under Section 379 of the Indian Penal Code and the ground case in Crime No.546 of 2009 registered by Velagoundanpatty police station for the offences under Sections 379 and 506(2) of the Indian Penal Code and Section 3(i) of T.N.P.P.D.L. Act for the incident that had taken place on 19.12.2009 and the detenu was arrested on the same day, the Detaining Authority, on scrutiny of materials placed, passed the detention order, after arriving at the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order, which is the subject matter of challenge before this Court.
4. Advancing arguments on behalf of the petitioner, learned counsel would submit that the detenu has filed bail application in the ground case in C.M.P. No.19 of 2010 on 6th January, 2010 and the same was dismissed on 11th January, 2010 and thus, on the date when the order of detention came to be passed on 02.02.2010, no bail application was pending, but the authority has observed in the detention order that there was a real possibility of the detenu coming out on bail, which is without any basis whatsoever.
5. Learned counsel added further that the representation was actually made on 2.3.2010 and the same was rejected only on 31.3.2010 and thus, there is a huge and inordinate delay, which remains unexplained. On these grounds, learned counsel sought to set aside the detention order.
6. This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
7. As could be seen above, the order under challenge came to be passed against the detenu on the strength of the materials in respect of ten adverse cases and also one ground case referred to above. It is an admitted position that in all the adverse cases, the detenu was granted bail, wherein seven cases are registered under Section 379 of the Indian Penal Code and the remaining cases are registered under Section 380 of the Indian Penal Code. It is also not in controversy that the detenu made the bail application in respect of the ground case, which was registered for the offences under Sections 379 and 506(2) of the Indian Penal Code and Section 3(i) of T.N.P.P.D.L. Act in C.M.P. No.19 of 2010 on 6th January, 2010 and the same was dismissed on 11th January, 2010.
8. Hence, it would be quite clear that while the detenu was granted bail in all the adverse cases, no bail was granted in the ground case, which is also registered for the offences under Sections 379 and 506(2) of the Indian Penal Code and Section 3(i) of T.N.P.P.D.L. Act. Apart from this, the bail application was dismissed on 11th January, 2010 and the detention order came to be passed after an interval of 20 days i.e. on 2nd February, 2010. Under such circumstances, the submission made by the learned counsel for the petitioner that the inference that was made by the Authority that there is real possibility of the detenu coming out on bail is without any material, cannot be accepted. Hence, the first contention raised by the learned counsel for the petitioner has got to be rejected.
9. However, this Court noticed the delay in consideration of the representation made by the detenu. As could be seen from the materials available on record, the representation was actually made on 3.3.2010; remarks were called for on 4.3.2010; parawar remarks were called for on 12.3.2010 and the same was received on 18.3.2010 and intervening three holidays are noticed. But, when the remarks were received on 18.3.2010, it was shown as received on 23.3.2010. The intervening delay of four days remained unexplained, which, no doubt, would cause prejudice to the interest of the detenu. In such circumstances, though the first ground raised by the learned counsel for the petitioner is rejected, the Court agrees with the second ground raised by the learned counsel for the petitioner and on the second ground, the detention order has got to be set aside.
10. Accordingly, the Habeas Corpus Petition is allowed, setting aside the detention order passed by the second respondent in C.M.P. No.1/Goonda/2010/M1 dated 2.2.2010. The detenu, namely, Dhanabal, who is now confined at Central Prison, Salem is directed to be set at liberty forthwith unless his custody/detention is required in connection with any other case.
ssa.
To
1. The Secretary to the Government,
Home, Prohibition and
Excise Department.,
Secretariat, Chennai 600 009.
2. The District Collector,
Namakkal District,
Namakkal