BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24/03/2010
CORAM
THE HONOURABLE MR.JUSTICE P.MURGESEN
and
THE HONOURABLE MR.JUSTICE T.MATHIVANAN
H.C.P.(MD)No.145 of 2010
Ravi .. Petitioner
vs
1.The District Magistrate and
District Collector,
Virudhunagar District,
Virudhunagar.
2.State of Tamil Nadu,
Rep. by its Secretary to Government,
Government of Tamil Nadu,
Home, Prohibition & Excise (IX) Department,
Chennai - 9. .. Respondents
Petition filed under Article 226 of the Constitution of India to issue a
Writ of Habeas Corpus praying to call for the entire records pertaining to the
proceedings of the 1st respondent made in his proceedings in Cr.M.P.No.6/2010
dated 15.02.2010 and quash the same and to produce him before this Hon'ble Court
and set the detenu by name "Thirumalai S/o. Soundrapandian" at liberty from
Central Prison, Madurai.
!For petitioner ... Mr.K.Jeganathan
^For respondents ... Mr.Issac Manuel
Additional Public Prosecutor
:ORDER
(Order of the Court was made by P.MURGESEN, J)
Challenging the order of detention, the brother of the detenu has filed
the petition. The detenu was detained by the first respondent District
Collector by his detention order Cr.M.P.No.06/2010, dated 15.02.2010, 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 “Sand Offender”.
2. The detenu was involved in one adverse case, which is as follows:-
SlNo. Name of the Police station Section of law
and Crime No.
1 Compounding order of the Revenue Section 21(1) of Mines and Minerals
Divisional Officer, Aruppukottai, (Development and Regulation) Act,
issued in his proceedings in 1957.
ROC A2/2835/2009 dt. 23.07.2009
Apart from that, the detenu was involved in one ground case in Crime No.101/2010
under Section 21(1)(5) of Mines and Minerals (Development and Regulation) Act,
1957 r/w Section 36 A(1) of Tamil Nadu Mines and Minerals Concessions Rules,
1959 and u/s 3 and 4 of Tamil Nadu Property (Prevention of Damage and Loss) Act,
1992 and under Sections 353 and 307 of I.P.C. registered in Virudhunagar Rural
Police Station for the incident that took place on 11.02.2010.
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 not filed any bail application in the ground case.
However, the detaining authority has observed in his order that there is a real
possibility of the detenu 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. It
is settled law that there must be some material to hold that there is
possibility of the detenu coming out on bail. In the detention order the
detaining authority has averred that
“I am aware that Thiru. Thirumalai, has been remanded to Judicial custody upto
25.02.2010 in District Jail, Virudhunagar in connection with Virudhunagar Rural
Police Station Cr.No.101/2010. In this case he has not moved bail application.
He has committed the crime case u/s 21(1)(5) of Tamil Nadu Mines and
Minerals(Development and Regulation) Act 1957 and u/s. 353 and 307 IPC. In the
Cr.No.622/09 registered under section 307 IPC of Srivilliputhur Town Police
Station, the Principal District Munsif Court, Virudhunagar at Srivilliputhur
granted bail vide Cr.M.P.No.2069/09, dt. 26.08.2009. Thiru.Thirumalai has also
committed the crime u/s 307. Therefore, there is a Real Possibility of his
coming out on bail by filing bail application in the above ground case before
the concerned court or higher court.”
There must be satisfactory and acceptable materials on record to enable the
detaining authority to arrive at the conclusion that there is real possibility
of the detenu coming out on bail by filing another bail application. We perused
the materials carefully and meticulously and absolutely, there is no material
for the detaining authority to arrive at the subjective satisfaction. So, the
subjective satisfaction arrived at by the detaining authority is not correct.
Hence, the order of detention is liable to be set aside on this ground.
5.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 : Sand Offender 2.Name : Thiru.Thirumalai S/o.Thiru.Soundara Pandian 3.Order of Detention No. : Cr.M.P.No.06/2010 & dated Dated 15.02.2010 4.District/City : Virudhunagar District 5.Representation dated : 19.02.2010 6.Representation received on : 22.02.2010 7.Remarks called for on : 23.02.2010 8.Reminder dated : 'Nil' 9.Remarks received on : 02.03.2010 10.File Submitted on : 03.03.2010 11.Under Secretary dealt with on : 03.03.2010 12.Joint Secretary dealt with on : 03.03.2010 13.Minister for LAW dealt with on : 04.03.2010 14.Rejection Letter prepared on : 09.03.2010 15.Rejection letter sent to the detenu : 10.03.2010 16.Rejection letter served to the detenu on : NOT RECEIVED YET
It is seen that though the Hon’ble Minister for Law dealt with the first
representation on 04.02.2010, the rejection letter was prepared only on
09.02.2010. Though 06.02.2010 and 07.03.2010 were holidays, even then there is
a delay of two days. Since, the said delay is unexplained, it vitiates the order
of detention. Hence, the order of detention is liable to be set aside on this
ground also.
6. Accordingly, this Habeas Corpus Petition is allowed and the order of
detention in Cr.M.P.No.06/2010 (SAND OFFENDER) dated 15.02.2010, passed by the
first 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 District Magistrate and
District Collector,
Virudhunagar District,
Virudhunagar.
2.The Secretary to Government,
Government of Tamil Nadu,
Home, Prohibition & Excise (IX) Department,
Chennai – 9.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.