BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM and THE HONOURABLE Ms.JUSTICE R.MALA Habeas Corpus Petition (MD) No.671 of 2008 Thangam .. Petitioner Vs. 1.The State represented by The District Collector and District Magistrate, Tirunelveli, Tirunelveli District. 2. The Secretary, Government of Tamil Nadu, Prohibition and Excise Department, Fort Saint George, Chennai-9. .. Respondents Petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus calling for the records from the first respondent in M.H.S.Confdl.No.118/2008 dated 31.07.2008 setting aside the said order of detention passed by the first respondent and setting the detenue, the petitioner's husband Mariappan at liberty now detained in Central Prison, Palayamkottai. !For Petitioner ... Mr.V.Kathirvelu ^For Respondents ... Mr.Daniel Manohar Addl.Public Prosecutor. :ORDER
(Order of the Court was made by M.CHOCKALINGAM,J)
In this writ application challenge is made to an order of the first
respondent made in M.H.S.Confdl.No.118/2008 dated 31.07.2008, whereby Mariappan,
the husband of the petitioner, was ordered to be detained under the provisions
of the Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Drug
offenders, Forest offenders, Goondas, Immoral Traffic offenders, Sand offenders,
Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982)
(hereinafter referred as the Act) terming him as a ‘Goonda’ as defined under the
Act.
2. The Court heard the learned counsel for the petitioner and also looked
into all the material in particular the order under challenge and also the
counter filed by the State.
3. It is not in controversy, pursuant to the recommendations made by the
sponsoring authority that the detenu was involved in Cr.No.708/2008 for the
offence under Sections 353, 307, 379 IPC and 132 read with 177 Motor Vehicle
Act; in Cr.No.714/2008 for the offence under Section 379 IPC; in Cr.No.722/2008
for the offence under Section 379 IPC; in Cr.No.723/2008 for the offence under
Section 379 IPC, all the four adverse cases are registered on the file of
Tenkasi Police Station and apart from this he was also involved in
Cr.No.311/2008 for the offence under Sections 294(b), 323, 324 and 506(ii) IPC
on the file the Courtallam Police Station which was shown as ground case, the
detaining authority looked into all the materials available and made the order
of detention after recording his subjective satisfaction that the activities of
the detenu were prejudicial to the maintenance of the public order and
circumstances would warrant for detaining him under the Act and thus, the
authority has made the order under challenge, which is the subject matter of
challenge before this Court.
4. Advancing the arguments, on behalf of the petitioner, the learned
counsel for the petitioner would submit that in so far as the first adverse case
and ground case are concerned, no bail application was filed and equally in the
second, third and fourth adverse cases bail applications were pending. Under
such circumstances, it cannot be stated that there was any real possibility of
the detenu coming out on bail. But, the detaining authority has observed that
there was a real possibility of the detenu coming out on bail and the same was
without any basis whatsoever. Added further, the learned counsel for the
petitioner would submit that a perusal of the order would indicate that the
detenu was arrested in the ground case registered in Cr.No.311/2008 on the file
of Courtallam Police Station on 29.07.2008, but no material is available to
accept the same. Added further, the learned counsel for the petitioner would
submit that in so far as the four adverse cases are concerned, the detenu was
arrested on 22.07.2008. In so far as the ground case is concerned, the detenu
was not actually arrested, but a P.T. Warrant was issued on 30.07.2008 for his
production in that case on 05.08.2008. It is pertinent to point out that the
order of detention came to be passed on 31.07.2008 itself and thus, the date of
arrest of the detenu in Cr.No.311/2008 on the file of Courtallam Police Station
on 29.07.2008 was only imaginary and that would also clearly indicate the non
application of mind on the part of the detaining authority. Hence, the order has
got to be set aside. Added further, the learned counsel for the petitioner would
submit that there was an inordinate delay in consideration of the representation
made by the detenu to the authority.
5. The Court heard the learned Additional Public Prosecutor on the
submissions made and paid its anxious consideration. After doing so, the Court
has to necessarily set aside the order on the following grounds;
Firstly, it is not in controversy that the detenu was involved in four
adverse cases and one ground case in Cr.No.311/2008 on the file of Courtallam
Police Station referred to above. In so far as the observations made by the
authority in the course of his order that there was a real possibility of the
detenu coming out on bail is concerned, it was actually observed without any
material or any basis at all for the reasons, as rightly pointed out by the
learned counsel for the petitioner that in so far as the first adverse case and
ground case are concerned no bail application was pending and in so far as the
second, third and the fourth adverse cases are concerned, bail applications were
actually pending for orders, and thus, the observations made by the authority
that there was a real possibility of the detenu coming out on bail is without
any basis whatsoever. It was simply an impression that was passing in the minds
of the detaining authority. Thus, it is quite indicative of the fact that the
observation is nothing but prejudging of the situation that an order to be
passed in the bail application made in the Court of Law.
Secondly, the Court is unable to notice any material to indicate that the
detenu was arrested on 29.07.2008 in the ground case. Contrarily, it was shown
that the detenu was arrested on 22.07.2008 in the adverse cases. P.T. Warrant
was issued only on 30.07.2008, as it could be seen from the page 157 of the
book, for his production before the Court on 05.08.2008. It would be clear
indicative of the fact that there was no arrest was made on 29.07.2008 in the
ground case as found in the detention order. Further the order under challenge
came to be passed on 31.07.2008. There was a direction for the production of the
detenu on 05.08.2008 under P.T. warrant and the same was also passed on
30.07.2008. All would clearly indicate the date of arrest in the ground case as
if 29.07.2008 cannot be true, but imaginary which would indicate the non
application of mind on the part of the authority. Added circumstances, there was
delay in consideration of the representation. The representation was received on
17.09.2008 and the remarks were called for on 22.09.2008 and the remarks were
received on 29.09.2008. But, the file is submitted only on 10.10.2008. Thus,
there was a delay of 11 days out of which, 5 days are shown to be holidays and
the State has no explanation for the remaining 6 days delay which has caused
prejudice to the interest of the detenu. Hence the order has got to be set
aside. Hence, this Court has made undone by upsetting the order under challenge.
6. Accordingly, the Habeas Corpus Petition is allowed and the detention
order in M.H.S.Confdl.No.118/2008 dated 31.07.2008 passed by the first
respondent is quashed. The detenu is directed to be set at liberty forthwith
unless his presence, in accordance with law, is required in connection with any
other case.
jikr/sj
To:
1.The State represented by
The District Collector and
District Magistrate,
Tirunelveli,
Tirunelveli District.
2. The Secretary,
Government of Tamil Nadu,
Prohibition and Excise Department,
Fort Saint George,
Chennai-9