IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 18.12.2009 Coram The Honourable Mr. Justice M.CHOCKALINGAM and The Honourable Mr. Justice V.PERIYA KARUPPIAH H.C.P. No.1824 of 2009 Shanthi ... Petitioner ..Vs.. 1. The Secretary to Government, Home Prohibition and Excise Dept., Secretariat, Chennai-600 009. 2. District Collector and District Magistrate, Dharmapuri District, Dharmapuri. ... Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, call for the records in connection with the order of detention passed by the 2nd respondent dated 30.07.2009 in S.C.No.27/2009 against the husband of the petitioner, Padaiyappa @ Ravi, aged 45 years, son of Vetrayan, who is confined at Central Prison, Salem and set aside the same and direct the respondents to produce the detenu before this Court and set him at liberty. For Petitioner : Mr.M.Jayachandran For Respondents : Mr.V.R.Balasubramanian, Addl.P.P., for R1 & R2 Mr.N.K.M.Sahadev, Spl.C.C.G., for R3 O R D E R
(Order of the Court was made by M.CHOCKALINGAM, J.,)
Challenge is made to an order of detention made by the second respondent herein dated 30.07.2009 in S.C.No.27/2009, whereby one Padaiyappa @ Ravi, the husband of the petitioner Shanthi, was ordered to be detained under Section 3(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 (Tamil Nadu Act 14 of 1982), terming him as an ‘Immoral Traffic Offender’.
2. The affidavit in support of the petition along with all the materials including the order under challenge are perused. The Court heard the learned Counsel for the petitioner.
3. It is not in controversy that on the recommendations made by the sponsoring authority that the said Padaiyappa @ Ravi was involved in one averse case, namely, Dharmapuri P.S.Cr.No.1167/2009 dated 19.06.2009 under Sections 3(1), 3(2)(a)(b), 4(1), 5(1)(a), 6(1)(a) of ITP Act and also on the strength of a ground case in Crime No.1302 of 2009 registered by the same police on 20th July, 2009 under Sections 3(1), 3(2)(a)(b), 4(1), 5(1)(a), 6(1)(a) of Immoral Traffic Prevention Act, and on scrutiny of the materials available, the 2nd respondent, the detaining authority, after recording the subjective satisfaction that the activities of the detenu were prejudicial to the public order and health, has made the order under challenge.
4. Advancing the arguments on behalf of the petitioner, the learned counsel would submit that the ground case came to be registered against the detenu on 20th July 2009 and he was arrested on the same day; that the bail application was filed in Crl.M.P.No.3839 of 2009; that when the application was taken up for consideration by the Judicial Magistrate I, Dharmapuri, the complainant herself appeared before the Court and filed an affidavit, stating that she was forced to give a false complaint against the accused and the complaint itself was not true; that even after the said affidavit was filed before that Court, that Court dismissed the application and thus, it will be quite clear from the said affidavit that no such complaint was given by her; on the contrary, the records were collected by the sponsoring authority and placed materials in that regard and the detaining authority, without taking into consideration the same, passed the order as if there was a complaint given by the complainant thereon and thus, it had no basis at all. Added further the learned counsel that there was a remand report and the remand order was also made, which are available at page Nos.42 and 43 of the booklet; that a perusal of the same would indicate that no date is mentioned therein and that under such circumstances, the detaining authority should have called for a clarification from the sponsoring authority, but not done so. Added further while the bail application came to be dismissed on 23.07.2009, and it was within the knowledge of the detaining authority, as found in the grounds of detention, the detaining authority has observed that there was a real possibility of the detenu coming out on bail by filing another bail application for the above case before the same Court or before the other forums after lapse of time and thus, without any material, the observation has been made. Under such circumstances, the order is infirm and has got to be set aside.
5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
6. As recorded above, the detaining authority, on scrutiny of the materials available, recorded the subjective satisfaction that it was a fit case, where the detenu should be detained under Act 14 of 1982 since his activities were prejudicial to the public order and health. Now, on a perusal of the materials available, the Court is of the opinion that the order is infirm and defective and hence, the order cannot be sustained, as follows:
(i) Firstly, among the grounds, the Court is able to see that when there was a remand report and there was also a remand order pursuant to judicial custody, copies of which were served on the detenu, as found in page Nos.42 and 43 in the booklet, they did not contain either the date of remand report or the date of remand order. Once this lacunae is brought to the notice of the Court, the learned Additional Public Prosecutor came forward to state that both are the court orders and under such course, no clarification could be called for from the sponsoring authority. This contention cannot be accepted by the Court for the simple reason that when there was a remand report and order of remand pursuant to that and when the copies were served upon the detenu, it must be served the actual purpose; but in the instant case, so long it did not contain the date of remand report and also the date of remand order, the detenu is kept in darkness and the reason given the learned Additional Public Prosecutor that there could be no necessity to get a clarification, cannot be the reason.
(ii) Apart from that, as rightly pointed out by the learned counsel for the petitioner that the application for bail came to be dismissed by the Judicial Magistrate No.I, Dharmapuri in Crl.M.P.No.3839 of 2009 on 27.03.2009. While it was dismissed so, even without any application filed or pending before any Criminal forum, the detaining authority has observed that there was a real possibility of the detenu coming out on bail by filing another application and thus, it can be well settled that it was without any material, much less, cogent material at all. It was only an expression of impression passed in the mind of the detaining authority. This would suffice, under such circumstances, that the order found to be infirm and defective.
7. So far as the first ground as to the complainant appearing before the Court and also filing an affidavit that she was forced by the police officers to give a complaint is concerned, in the considered opinion of the Court, it cannot be a reason, which could be taken in favour of the petitioner. However, the first two reasons, as stated above, would suffice to set aside the order.
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.
gl
To
1. The Secretary to Government,
Home Prohibition and Excise Dept.,
Secretariat,
Chennai-600 009.
2. District Collector and
District Magistrate,
Dharmapuri District,
Dharmapuri.
3. The Superintendent,
Central Prison,
Salem.
4. The Public Prosecutor,
High Court,
Madras