BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE Ms.JUSTICE R.MALA HCP (MD) No.851 of 2008 Raziabegam .. Petitioner vs 1.The State of Tamil Nadu Represented by Secretary to Government of Tamil Nadu Public (Law and Order-F) Department Fort St. George, Chennai 600 009. 2.The District Collector and District Magistrate Dindugul District. 3.The Secretary to the Government of India Ministry of Internal Security North Block New Delhi 110 001. 4.The Superintendent of Prison Trichy Central Prison Trichy 5.The Secretary Advisory Board Coovam House Omandurar Government Estate Swami Sivanandha Salai Chennai 600 002. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus calling for the records connected with the detention order of the respondent No.2 in NSA Detention order No.01/2008 dated 25.7.2008 and quash the same and direct the respondents to produce the body and person of the petitioner's son Mubarak, son of Mohamed Maideen aged about 27 years detaining at Trichy Central Prison before this Court and set him at liberty forthwith. !For Petitioner ... Mr.R.Alagumani ^For Respondents ... Mr.M.Daniel Manohar Additional Public Prosecutor for RR1, 2, 4 and 5 :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J.)
Challenge is made to an order of detention made by the second respondent
under the provisions of the National Security Act, dated 25.7.2008, pursuant to
which one M.Mubarak, the son of the petitioner Raziabegam was was detained.
2.The Court perused the order under challenge along with the materials
available and heard the learned Counsel for the petitioner and also the learned
Additional Public Prosecutor on the contentions.
3.Three grounds are raised challenging the order. (a) Firstly, out of
six adverse cases namely (1) Dindigul Town West PS Cr.No.244/08 under Ss 147,
148, 294(b) and 506(ii) IPC, (2) Dindigul Town North PS Cr.No.239/08 under Ss
143, 341, 336 IPC and 3(1) of TNPPDL Act; (3) Dindigul Town North PS
Cr.No.479/08 under Ss 147, 341, 336 IPC and 3(1) of TNPPDL Act; (4) Dindigul
Town South PS Cr.No.346/08 under Ss 147, 148, 341, 153(A), 153(B) IPC r/w 3(1)
TNPPDL Act; (5) Dindigul Town South PS Cr.No.347/08 under Ss 147, 148, 341, 324,
307, 153(A), 153(B) IPC r/w 3(1) TNPPDL Act; and (6) Dindigul Town South PS
Cr.No.348/08 under Ss 147, 148, 341, 153(A), 153(b) IPC r/w 3(1) TNPPDL Act, and
one ground case in Dindigul Town West Police Station Cr.No.382/08 under Ss 147,
148, 341 IPC and 3(1) of TNPPDL Act, 1984, he moved for bail in the ground case,
but not in the adverse case Nos.3, 4, 5 and 6. While the bail application was
not filed, the detaining authority has pointed out in its order that there is a
real possibility of the detenu coming out on bail. The bail application in the
ground case was actually dismissed on 23.7.2008. The order under challenge came
to be passed on 25.7.2008, and thus without any material whatsoever, such an
observation is made which impelled the authority to pass the order. Thus it
suffers.
(b) Secondly, as far as the extension of remand in all the said four
adverse cases is concerned, the copies of the documents relied on by the
authority, were not served upon the detenu. Hence, it would also affect the
impugned order.
(c) Thirdly, it has been specifically raised in the grounds that all those
materials were not placed before the Advisory Board within the stipulated period
of three weeks, and it is not replied in the course of the counter. Hence it
casts a doubt whether it would have been done as per the provisions of law.
Under the circumstances, it has got to be set aside.
4.The Court heard the Additional Public Prosecutor on all the above
contentions and paid its anxious consideration on the submissions made.
5.Pursuant to the recommendations made by the sponsoring authority that he
is involved in six adverse cases and one ground case as referred to above, the
detaining authority has passed the order which is under challenge. Firstly, as
rightly pointed out by the learned Counsel for the petitioner, it is an admitted
position that only in the ground case, bail was asked for, and the same has also
been dismissed only on 23.7.2008. As far as the adverse case Nos.3, 4, 5 and 6
are concerned, no application for bail was filed; but, the order came to be
passed on 25.7.2008, wherein it is observed that there was a real possibility of
the detenu coming out on bail. While the bail application filed in the ground
case, was dismissed only on 23.7.2008 and in the four adverse cases as referred
to above, no application has even been filed, the said observation made by the
detaining authority is nothing but prejudging the situation, and it cannot but
be only an apprehension in the mind of the detaining authority. Hence the order
suffers.
6.Secondly, as far as the said four adverse cases are concerned, the
documents relating to the order of remand, have not been supplied. No answer
emanates from the State in order to deny that contention.
7.Thirdly, a specific ground has been raised in the application that
within the stipulated time of three weeks, all materials were not placed before
the Advisory Board; but, no reply is coming from the State even in the counter.
Hence it is highly doubtful whether it would have been done as envisaged in law.
But, it is a legal mandate. Under the stated circumstances, this Court feels no
impediment in setting aside the order.
8.Accordingly, this habeas corpus petition is allowed setting aside the
order of the second respondent. The detenu is directed to be set at liberty
forthwith unless his presence is required in connection with any other case.
nsv
1.The Secretary to Government of
Tamil Nadu
Public (Law and Order-F) Department
Fort St. George,
Chennai 600 009.
2.The District Collector and District
Magistrate
Dindugul District.
3.The Secretary to the Government
of India
Ministry of Internal Security
North Block
New Delhi 110 001.
4.The Superintendent of Prison
Trichy Central Prison
Trichy
5.The Secretary
Advisory Board
Coovam House
Omandurar Government Estate
Swami Sivanandha Salai
Chennai 600 002.
