IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28-9-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN H.C.P.No.1095 of 2010 Sasikala .. Petitioner vs 1.State of Tamil Nadu Rep. By its Secretary to Government Home, Prohibition and Excise Department Fort St. George, Chennai 600 009. 2.The Commissioner of Police Chennai Police Egmore, Chennai 600 008. .. 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 passed by the second respondent dated 22.3.2010 in Memo No.155/BDFGISSV/2010 against the petitioner's son/detenu Siva @ Thiruttu Siva @ Yamaha Siva, S/o. Murugesan, aged about 25 years, who is now confined at Central Prison, Puzhal, Chennai, and set aside the same and direct the respondents to produce him before this Hon'ble Court and set him at liberty. For Petitioner : Mr.V.Perarasu For Respondents : Mr.Babu Muthu Meeran Additional Public Prosecutor ORDER
(Order of the Court was made by M.CHOCKALINGAM, J.)
This petition challenges an order of the second respondent dated 22.3.2010, whereby the son of the petitioner by name Siva @ Thiruttu Siva @ Yamaha Siva was ordered to be detained under Act 14/82 branding her as a Goonda as defined under the provisions of that Act.
2.The Court heard the learned Counsel for the petitioner and all the materials and in particular, the order under challenge were scrutinized.
3.It is not in controversy that pursuant to the recommendations made by the sponsoring authority that the detenu was involved in seven adverse cases namely (1) Thiruvannamalai City PS Cr.No.288/2007 under Sec.380 IPC; (2) V3 JJ Nagar PS Cr.No.412/2008 under Sec.379 IPC; (3) Thiruvannamalai PS Cr.No.717/2008 under Sec.379 IPC; (4) T-2 Ambattur Estate PS Cr.No.467/2009 under Sections 341 and 324 IPC; (5) V7 Nolambur PS Cr.No.573/2009 under Sec.379 IPC; (6) V3 JJ Nagar PS Cr.No.670/2009 under Sec.379 IPC and V7 Nolambur PS Cr.No.695/2009 under Sec.379 IPC and also in one ground case registered by V7 Nolambur PS in Crime No.707/2009 under Sections 341, 323, 336, 397 and 506(ii) IPC for an occurrence that has taken place on 26.12.2009, the detaining authority on scrutiny of the materials has made the order under challenge after recording the subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of the public order.
4.The learned Counsel for the petitioner would submit that a pre-detention representation was made on 8.1.2010, and it was not at all considered; that all the materials and the grounds of detention were served upon the detenu only on 29.3.2010, which was violative of the provisions under Sec.8(1) of the Act; that the order came to be passed on 22.3.2010, but the ground case was actually registered in Crime No.707/2009 for an occurrence that had taken place on 26.12.2009, and there was a delay of nearly about 85 days in passing the detention order, and hence the order has got to be set aside.
5.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
6.As could be seen above, the detenu was involved in eight cases namely seven adverse cases and one ground case as referred to above. From the perusal of the materials available, it would be quite clear that the telegraphic message was sent on 8.1.2010, and it was also a pre-detention representation. But, the same was not at all considered by the authority. According to the State, no such telegraphic message was received. But, this contention cannot be accepted since the acknowledgement therefor along with the receipt is available. This Court is of the view that the same would affect the order under challenge.
7.As far as the second ground is concerned, it would be more apt and appropriate to reproduce Sec.8(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 as follows:
“8.Grounds of order of detention to be disclosed to persons affected by the Order:- (1) when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government.”
8.In view of the above mandatory provision, not only the detention order, but also the grounds had got to be supplied within a period of not less than five days. In the instant case, the order came to be passed on 22.3.2010. According to the State, the order was served upon him on 25.3.2010, and the grounds were actually served on 29.3.2010. Learned Additional Public Prosecutor would urge that these five days as stipulated under Sec.8(1) of the Act, would commence from the date of the service of the order of detention. But, this contention cannot be accepted. The order came to be passed on 22.3.2010, and only the order was served on 25.3.2010, but the grounds of detention were served on 29.3.2010, which would be violative of mandate under Sec.8(1) of the Act since it was beyond five days’ time.
9.Apart from the above, as rightly pointed out by the learned Counsel for the petitioner, the ground case was actually registered on 26.12.2009, by V7 Nolambur Police Station in Crime No.707/2009. The impugned order came to be passed on 22.3.2010, and thus there was a delay of nearly about 85 days. This long delay in making the order of detention like this is also found be one against the order under challenge. This Court is of the view that on these grounds, the order is liable to be set aside.
10.In the result, this habeas corpus petition is allowed setting aside the order of detention passed by the second respondent. The detenu is directed to be set at liberty forthwith unless his custody is required in connection with any other case.
(M.C.,J.) (M.S.N.,J.)
28-9-2010
Index: yes
Internet: yes
nsv
To:
1.The Secretary to Government
Home, Prohibition and Excise
Department
Fort St. George, Chennai 600 009.
2.The Commissioner of Police
Chennai Police
Egmore, Chennai 600 008.
3.The Public Prosecutor
High Court, Madras.
M.CHOCKALINGAM, J.
AND
M.SATHYANARAYANAN, J.
nsv
HCP No.1095 of 2010
Dt: 28-9-2010