BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16/4/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE T.MATHIVAN H.C.P.(MD) No.90 of 2010 S.Santhi .. Petitioner vs 1.The Secretary to Government Home, Prohibition and Excise Department, Secretariat Chennai 600 009. 2.The District Collector and District Magistrate Kanyakumari District at Nagercoil .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus calling for the records relating to the detention order in P.D.No.51 of 2009 dated 20.10.2009 passed by the 2nd respondent and set aside the same and consequently direct the respondents to produce the body of the detenu namely Stalin S.o, Francis aged 27 years before this Court who was confined at Central Prison, Palayamkottai and set him at liberty. !For Petitioner ... Mr.K.P.Narayanakumar ^For Respondents ... Mr.Samuel Raj Additional Public Prosecutor :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J.)
Challenge is made to an order of detention made by the second respondent
dated 20.10.2009, whereby the petitioner’s husband Stalin was ordered to be
detained under Act 14/82 terming him as a Goonda.
2.The Court heard the learned Counsel on either side and looked into the
materials available and in particular the order under challenge.
3.Pursuant to the recommendations made by the sponsoring authority that
the alleged detenu was involved in 7 adverse cases namely (i) Thiruvattar PS
Cr.No.14/2003 under Sections 294(b) and 506(ii) of IPC; (ii) Thiruvattar PS
Cr.No.155/2005 under Sec.4 of the Tamil Nadu Prevention of Harassment of Women
Amendment Act 2002 and Sections 354 and 506(i) of IPC; (iii) Thiruvattar PS
Cr.No.173/2008 under Sections 452, 294(b), 354 and 506(ii) of IPC; (iv)
Thiruvattar PS Cr.No.532/2008 under Sections 294(b), 324 and 379 of IPC; (v)
Thiruvattar PS Cr.No.104/2009 under Sections 147, 148, 353 and 332 of IPC read
with Sec.7(i)(A) of CLA Act; (vi) Thiruvattar PS Cr.No.401/2009 under Sections
294(b), 323, 427 and 506(i) of IPC and (vii) Thiruvattar PS Cr.No.503/2009 under
Sections 341, 294(b), 323, 324 and 506(i) of IPC and also a ground case in
Thiruvattar PS Cr.No.555/2009 registered under Sections 341, 294(b), 323, 427
and 307 of IPC for an occurrence that took place on 9.10.2009, and he was
arrested and remanded to custody on the very day, the detaining authority on
scrutiny of the entire materials available, has made the order under challenge
after recording that the activities of the detenu were prejudicial to the
maintenance of public order.
4.The learned Counsel for the petitioner assailing the order brought to
the notice of the Court three points which, according to him, would suffice to
set aside the order.
5.Firstly, the order came to be passed on 20.10.2009. Insofar as Crime
No.555/2009, it was claimed by Thiruvattar PS that he was arrested and remanded
to custody on 9.10.2009 itself; but it was false. Even on 5.10.2009 itself, he
was taken to custody by the police, and immediately, the petitioner wife gave a
telegraphic message to the Collector of Kanniyakumari on 7.10.2009, as found in
page No.1, and also the receipt therefor is in page No.2 of the typed set filed
by the petitioner’s side. But, it has actually not been considered. If
considered, it would have been referred to in the order, but not done so. The
same would be indicative of the fact that it was not at all considered.
6.Secondly, the period of detention as the law would mandate, has not
been mentioned in the order.
7.Thirdly, bail application was actually filed in Crl.M.P. No.3201/2009 on
the file of the Principal Sessions Division, Kanniyakumari and the same was
dismissed on 15.10.2009. But, the authority even after stating so, has observed
that there was a real possibility of the detenu coming out on bail. Admittedly,
on that day, there was no bail application pending before any criminal Court,
and under the circumstances, it was not only premature but also without any
material much less cogent material, and hence all these grounds are available to
the petitioner to quash that order.
8.The Court heard the learned Additional Public Prosecutor on all the
above contentions and paid its anxious consideration on the submissions made.
9.After recording subjective satisfaction, the detaining authority has
made the order under challenge on 20.10.2009. At the outset, it remains to be
stated that the claim of Thiruvattar police is that the detenu was arrested
pursuant to the case registered in Crime No.555/2009, on 9.10.2009. As pointed
out by the learned Counsel for the petitioner, there is evidence to indicate
that a telegraphic message was given by the petitioner, the wife of the detenu,
on 7.10.2009 itself, stating that her husband was kidnapped by Thiruvattar PS on
5.10.2009 itself. Under the circumstances, once it has actually been addressed
to the Collector, it can be taken as pre-detention representation, and it should
have been considered by the Collector. But, no reference is made in the entire
order in that regard. In such circumstances, a duty was cast upon the authority
to call for explanation from the sponsoring authority about the same, but not
done so.
10.Equally, law would mandate that what is the actual period of detention
must be made mention in the order. But, in the case on hand, the entire order
does not stipulate the period of detention. Thus the order becomes infirm.
11.Above all, admittedly bail application was filed in
Crl.M.P.No.3201/2009 on the file of the Principal Sessions Division,
Kanniyakumari, and the same was dismissed on 15.10.2009, and it has been made
mention in the order itself. But, the authority even after mentioning so, has
stated that there was a real possibility of the detenu coming out on bail. It
would be more apt and appropriate to reproduce paragraph 4 of the order as
follows:
“4.I am aware that Thiru. Stalin was arrested on 09.10.2009 and duly produced
before the Judicial Magistrate, Padmanabhapuram on the same day and remanded
upto 23.10.2009 and lodged in the District Jail, Nagercoil. I am also aware
that he is in remand in the ground case in Thiruvattar P.S.Cr.No. 555/2009 and
the bail application moved on behalf of him in Crl.M.P.No.3201/2009 in the Court
of District and Principal Sessions Judge, Kanniyakumari Division at Nagercoil,
was dismissed on 15.10.2009. But there is a real possibility of his coming out
on bail ……”
12.From the above, it could be seen that the authority even after having
knowledge that the bail application already filed by the detenu was dismissed by
the Court, has stated that there was a real possibility, and hence it can be
well stated that it was only an expression of the impression which was in the
mind of the authority and it can only be an inference, but without any material
much less cogent material as the law would warrant. Under the stated
circumstances, this Court is of the view that all the three grounds are
available to set aside the order.
13.Accordingly, this habeas corpus petition is allowed setting aside the
order of detention made by 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
To
1.The Secretary to Government
Home, Prohibition and Excise
Department,
Secretariat
Chennai 600 009.
2.The District Collector and
District Magistrate
Kanyakumari District
at Nagercoil
3.The Public Prosecutor
Madurai Bench of Madras
High Court
Madurai