IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.06.2008 CORAM7 THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU H.C.P.NO.109 OF 2008 Suresh @ Suresh Kumar .. Petitioner Vs. 1.The Secretary to Govt., Tamil Nadu Prohibition and Excise Department, Fort St. George, Chennai-600 009. 2.The Commissioner of Police, Greater Chennai, Chennai .. Respondents This habeas corpus petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of habeas corpus to call for the entire records pertaining to the impugned detention order vide 293/2007, dated 7.7.2007 passed by the second respondent and approved by the first respondent and to quash the same as illegal and consequently direct the respondents to produce the detenu Suresh alias Suresh Kumar now lodged in Central Prison at Puzhal before the court and set him at liberty. For Petitioner : Mr.N.Duraisamy for Mr.S.Paul Sathiaseelan For Respondents: Mr.M.Babu Muthu Meeran, APP - - - - ORDER
(The order of the Court was made by M.CHOCKALINGAM, J.)
Challenge is made to an order of the second respondent made on 7.7.2007 in No.293/2007, whereby the petitioner herein Suresh @ Suresh Kumar was termed as Goonda and detained under the Tamil Nadu Act 14 of 1982.
2.The affidavit filed in support of the petition and the grounds of attack are noticed. The Court heard the learned counsel for the petitioner and also perused the order under challenge.
3.Consequent upon the recommendations made by the Sponsoring Authority along with the materials pertaining to 8 adverse cases, namely Crime Nos.641/2006, 848/2006, 947/2006 and 160/2007 registered by M-1 Madhavaram Police Station, Crime Nos.64/2007, 65/2007 and 66/2007 registered by M2 MM Colony Police Station and Crime No.63/2007 registered by M3 Puzhal Police Station under the provisions of Indian Penal Code, and a ground case registered in Crime No.68 of 2007 by M-2 Madhavaram Milk Colony Police Station, the Detaining Authority, on scrutiny of all the materials placed, has termed the petitioner Suresh @ Suresh Kumar as Goonda after recording that he has arrived at subjective satisfaction from the materials available that the activities of the detenu were prejudicial to the maintenance of public peace and order and further, a necessity arose to detain him under the provisions of the Tamil Nadu Act 14/1982 in order to prevent him from indulging in such further activities in future. Accordingly, he has passed the detention order, which is the subject matter of challenge before this court in this petition.
4.Advancing arguments on behalf of the petitioner, the learned counsel has made the following submissions:
In the ground case registered in Crime No.68 of 2007, referred to above, the petitioner was arrested on 6.5.2007. He was also produced before the Judicial Magistrate, Thiruvotriyur and was remanded to judicial custody till 21.5.2007, but on 21.5.2007, he was not produced and he was produced only on 4.6.2007 and his remand was extended from that day and thus, the non production of the detenu from the Central Prison before the Judicial Magistrate for getting extension of remand on 21.5.2007 till 4.6.2007 has got to be treated as illegal custody and hence this was not considered by the Detaining Authority and on that ground, the order under challenge is infirm. The arrest was made, admittedly, on 6.5.2007 in the ground case, but the detention order came to be passed only on 7.7.2007 and thus, there was an undue delay in passing the order. Thirdly, no intimation was sent to any one of the close relatives of the detenu after his arrest and thus, the legal mandate was violated. Fourthly, in pages 176, 199, 203 and 207 of the booklet, requisitions were made for the copy of remand extension order. In all these requisitions, it has been clearly averred that the proceedings were initiated to detain him under the Act and hence the matter was actually predetermined and this should be taken into consideration.
5.The learned counsel would further add that the Detaining Authority has pointed out in its order that he was aware of the fact that no bail application was filed till passing the order, but he was of the opinion that there was possibility for the petitioner coming out on bail. The said conclusion was only a statement made by the Detaining Authority without any basis whatsoever. Lastly, a representation was given on 31.1.2008 and the rejection order was served on the petitioner on 26.02.2008 and thus, there was an undue and unexplained delay and hence for all those reasons, the order of detention has got to be set aside.
6.The Court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
7.It is not in controversy that on the strength of recommendations made along with the particulars pertaining to 8 adverse cases and one ground case, as referred to above, the Detaining Authority has made an order of detention on 7.7.2007 under the provisions of the Tamil Nadu Act 14 of 1982, terming the petitioner as Goonda. It is also not in controversy that the petitioner was arrested on 6.5.2007 and was produced before the Judicial Magistrate, Thiruvotriyur and was remanded to custody till 21.5.2007. On 21.5.2007, he was not produced and there was extension of remand even without his production till 4.6.2007. The attack made by the petitioner’s side is that since he was not produced on 21.5.2007, the extension of remand was illegal and he was under illegal custody. This contention though attractive, cannot be countenanced for the simple reason that the reason for non production was brought to the notice of the court and extension of remand was made on 4.6.2007 on production. At this juncture, it is pertinent to point out that all the materials were actually placed and this fact was taken into consideration by the Detaining Authority while it made the order under challenge. The Detaining Authority, in its order under challenge, has pointed out as follows:
“The Inspector of Police during the course of investigation produced Thiru Suresh @ Suresh Kumar before the Judicial Magistrate, Thiruvotriyur, Chennai and lodged him at Central Prison, Chennai as remand prisoner till 21-5-2007. On 21.5.07 Tr.Suresh @ Suresh Kumar was not produced before the Judicial Magistrate, Thiruvotriyur due to non-availability of police escort. However, he was produced on 4.6.2007 and his remand was further extended periodically till 16-7-2007.”
At this juncture, it is pertinent to point out that while passing an order of detention, the Authority has considered the reasons as to why he could not be produced before the Court and was also conscious of the fact that he is in remand at Central Prison, Chennai. Under these circumstances, the Court is of the considered opinion that this ground now urged before the court as if he was under illegal detention, was of no avail.
8.Secondly, the next contention put forth by the learned counsel for the petitioner is that there was a delay in passing the order in question and that actually the petitioner was arrested on 6.5.2007 and the order under challenge was passed on 7.7.2007. The learned counsel for the State would submit that there were 8 adverse cases and one ground case and all were not registered by the same police station, but by different police stations and hence all the materials had got to be gathered and hence the delay has been caused. The Court is of the considered opinion that this cannot be termed as delay in making the order, since the reason adduced is acceptable.
9.So far as the third contention that after arrest was made, no communication was given to any one of the relatives of the petitioner is concerned, the learned counsel for the State took the Court to page 157 of the booklet, wherein it has been recorded that a telegraphic message was sent to the wife of the petitioner. It is pertinent to point out that not even a copy of the telegraphic message was placed in the hands of the court. The mere relying upon the arrest card that there was a communication addressed to the petitioner’s wife would not satisfy the law. The law would mandate that there should be a communication actually made to any one of the relatives. Hence the court is of the considered opinion that in the absence of any communication made to one of the relatives after the arrest, the contention of the learned counsel for the petitioner has got to be accepted.
10.The other contention put forth by the learned counsel for the petitioner that the order under challenge was pre-determined, cannot be countenanced. The learned counsel took the court to the requisitions made at the time of remand in different cases before the Judicial Magistrate, Thiruvotriyur. In all the remand reports, it has been repeatedly stated that proceedings have been initiated to detain him under the Tamil Nadu Act 14 of 1982, which was actually the expression of the true state of affairs. It is pertinent to point out that while the order under challenge was passed by the Detaining Authority, nowhere it is pointed out that it was one of the reasons to pass such an order. Merely because when the requisitions are made, the police personnel have repeatedly stated before the Judicial Magistrate Court that proceedings have been initiated, the same cannot by itself be a reason, to which it could be inferable that it was one of the reasons, which impelled the Detaining Authority to pass an order under challenge. Hence this ground falls to ground and has got to be rejected.
11.It is not in controversy that no bail application was made by the petitioner. The relevant part of paragraph 4 of the order under challenge reads as follows:
“4.I am aware that Thiru Suresh @ Suresh Kumar is in remand in M-1 Madhavaram Police Station Crime No.641/2006, 848/2006, 947/2006, 160/2007, M-3 Puzhal Police Station Crime No.63/2007 and M2 Madhavaram Milk Colony Police Station Crime Nos.64/2007, 65/2007, 66/2007 and 68/2007 and he has not moved any bail application so far. I am also aware that there is real possibility of his coming out on bail by filing bail application for the above cases before the same court or higher courts since in similar cases bails are granted by the same court or higher cours after a lapse of time.”
It is an admitted position that no bail application was filed or pending before the criminal court. In the course of the order, he was actually expressing the statement and that too without any basic material at all. The Authority concerned has further stated that there was possibility of the petitioner coming out on bail. The Court is of the considered opinion that the impression passed in the mind of the Detaining Authority was without any basis at all.
12.Lastly, it is true, a representation was made on 31.01.2008 and the rejection letter was actually served on the detenu on 26.02.2008. A perusal of the materials placed by the learned counsel for the State would reveal that the representation was received by the Department on 4.2.2008, remarks were called on 4.2.2008, the remarks were received on 19.02.2008 and that there was a delay of 15 days. The further contention put forth by the learned counsel for the State is that the representation was received from the Government on 6.2.2008; that parawar remarks were called for from the Sponsoring Authority on 08.02.2008; that the remarks were received from the Sponsoring Authority on 14.02.2008 and the report was sent to the Government on 18.02.2008. As could be seen from the materials, the representation was received from the Government on 6.2.2008, but the remarks were placed only on 19.02.2008. This Court is able to see 15 days time interval, out of which 4 days were holidays, but the rest of the period remained unexplained and thus, the Court is of the considered opinion that such an inordinate delay really caused prejudice to the petitioner. Hence the court is of the considered opinion that the points raised above would be sufficient to set aside the order of detention.
13.Accordingly, the detention order is set aside. This Habeas Corpus petition is allowed. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.
(M.C., J.) (S.P.V., J.)
25.06.2008
Index : Yes
Internet : Yes
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M.CHOCKALINGAM, J.
AND
S.PALANIVELU, J.
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To
1.The Secretary to Govt.,
Tamil Nadu Prohibition and Excise
Department,
Fort St. George,
Chennai-600 009.
2.The Commissioner of Police,
Greater Chennai,
Chennai.
3.The Additional Public Prosecutor,
High Court,
Madras.
H.C.P.NO.109 OF 2008
25.06.2008