IN THE HIGH COURT JUDICATURE AT MADRAS DATED : 11-6-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU HCP No.25 of 2008 Subash .. Petitioner vs 1.State of Tamil Nadu rep. By its Secretary to Government Prohibition and Excise Department Fort St. George, Chennai 600 009. 2.The Commissioner of Police Greater Chennai, Chennai 600 008. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus to call for the records of the respondents in memo No.BDFGISSV No.371/2007 dated 20.9.2007 and set aside the same and direct the respondents to produce the body and person of the petitioner now confined in Central Prison, Puzhal, Chennai, before this Court and set the petitioner at liberty. For Petitioner : Mr.B.Rajamani For Respondent : Mr.M.Babu Muthu Meeran 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 in memo No.BDFGISSV No.371/2007 dated 20.9.2007, and subsequently confirmed by the first respondent. The petitioner herein is the detenu.
2.The affidavit in support of the petition along with the grounds on which the said order is challenged, and also the order under challenge are all perused.
3.Concededly, the second respondent on the strength of the recommendation made by the sponsoring authority whereby three adverse cases in Crime Nos.296/2007 R2 Kodambakkam PS, 893/2007 F5 Choolaimedu PS and 895/2007 F5 Choolaimedu PS and one ground case in Crime No.901/2007 F5 Choolaimedu PS were shown and after looking into the materials available, formed an opinion that the detenu was to be termed as Goonda since his activities are prejudicial to the maintenance of the public order as contemplated under Sec.2(f) of the Tamil Nadu Act 14 of 1982, and in order to forbid such activities in future, the order of detention was to be passed. Accordingly, he has passed the order, which is the subject matter of challenge in this petition.
4.Advancing the arguments on behalf of the petitioner, the learned Counsel inter alia in his sincere attempt of assailing the order, made the following submissions:
(a) At the time when the detenu was arrested in connection with the case, as the law would expect, no one of the relatives were informed within the reasonable time.
(b) Further, it was referred to in the order as if a telegraphic message was given; but, no telegraphic message was given. Had it been given, it would have been served. Even in the communication which, according to the department, was sought to be served, but not served, the crime number of the ground case is shown as 701/2007 while the crime number was 901/2007, and thus, it was with incorrect number.
5.Placing reliance on a decision of this Court in HCP No.1361 of 2007 batch, the learned Counsel would urge that the object and the purpose of informing the members of the detenu’s household in writing of the passing of the order of detention and taking in custody of the detenu was with an object of not keeping them in darkness; but, they should be put on notice about the passing of the order of detention, and the place of detention should be made known so that they could have the access and render any help or assistance to the detenu, and the detenu should not be deprived of the privilege of meeting his relations and getting the help and assistance; but, in the instant case, no telegraphic message was given; that what is one now alleged was actually not done; and that not even the contents were made known. The learned Counsel took the Court to the communication that was addressed wherein the crime number is found as 701 of 2007 instead of 901 of 2007 and would submit that for these reasons it has got to be quashed.
6.The Court heard the learned Additional Public Prosecutor on the above contentions. He placed a certified copy of the telegraphic message which was given within the reasonable time of arrest. He would further add that as far as the communication was concerned, it is true that the crime number that was given as 701 of 2007 was not correct, and it should have been 901 of 2007; but, the same was not served upon the relatives of the detenu; that it was actually sent to the wife of the detenu; that only a telegraphic message was issued; that since it was not served, no prejudice was actually caused; that the telegraphic message what was actually sent and served, contained the correct crime number of the ground case, and under the circumstances, both these contentions have got to be rejected.
7.After hearing both sides and looking into the materials available, this Court has to necessarily agree with the petitioner’s case. It is not in controversy that an order came to be passed by the second respondent on the recommendation made by the sponsoring authority. It is also not in dispute that three adverse cases and one ground case were noticed. Admittedly, the crime number of the ground case is 901 of 2007. The grievance of the petitioner is that after his arrest, his household were not actually informed in writing of the passing of the order of detention and taking custody of him. In the instant case, the State came forward to state that a telegraphic message was given. A copy of the telegraphic message is also placed in the hands of the Court; but, the telegraphic message would clearly reveal that it was addressed to the detenu and not to any one else in the house. That apart, the detenu, at the time when the telegraphic message was given, was actually in the custody, and no useful purpose would have been served by issuing a telegraphic message to the name of the detenu who was actually in custody.
8.As far as the second contention that the actual crime number of the ground case i.e., 901 of 2007, was not shown, but 701/2007 was found in the telegraphic message is concerned, this Court is of the considered opinion that it is also a vital ground. The fact that it was served upon the detenu or the household is not material; but, it was actually intended to be served. No explanation is forthcoming from the State how the ground case crime number happened to be 701 of 2007. The crime number of the ground case, needless to say, is a material particular, and it is very vital also; but, it is not done so. In such circumstances, this Court is of the considered opinion that the household of the detenu would be deprived of the privilege given to them. The decision of this Court rendered in the HCP as referred to above, would squarely apply to the present facts of the case, and hence, it is applied.
9.Accordingly, the order of the second respondent is set aside, and this habeas corpus petition is allowed. The petitioner detenu is directed to be released forthwith unless his presence is required in connection with any other case.
(M.C.,J.) (S.P.V.,J.)
11-6-2008
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nsv/
M.CHOCKALINGAM, J.
AND
S.PALANIVELU, J.
nsv/
To:
1.State of Tamil Nadu
rep. By its Secretary to
Government
Prohibition and Excise Department
Fort St. George, Chennai 600 009.
2.The Commissioner of Police
Greater Chennai, Chennai 600 008.
3.The Public Prosecutor
High Court, Madras.
HCP No.25 of 2008
Dt: 11-6-2008