BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/08/2009 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN AND THE HONOURABLE MR.JUSTICE C.S.KARNAN H.C.P.(MD) No.340 of 2009 V.Dhanapakiyam .. Petitioner Vs. 1.The State of Tamil Nadu rep. by Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009. 2.The Commissioner of Police, Madurai City. 3.The Superintendent of Prison, Madurai Central Prison, Madurai. 4.The Secretary, Advisory Board, 32, Rajaji Salai, Singaraveler Maligai, Chennai Collectorate, Chennai. .. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India calling for the entire records connected with the detention order of Respondent No.2 in Detention Order No.30/BDFGISSV/2009 dated 28.04.2009 and quash the same and direct the respondents to produce the body and person of the detenu by name Senthil @ Senthil Kumar, Son of Vellaiyathevar, aged about 28 years detained in Madurai Central Prison before this Court and set him at liberty forthwith. !For Petitioner ... Mr.R.Alagumani ^For Respondents... Mr.N.Senthur Pandian, Addl.Public Prosecutor :ORDER
(Order of the Court was made by P.MURGESEN, J.)
The petitioner is the mother of the detenu, who was 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), by
branding him as a ‘GOONDA’.
2. There are three adverse cases and one ground case as against the
detenu. The first adverse case was in Crime No.288 of 2007 on the file of N-5
South Gate (Crime) Police Station registered under Sections 457 and 380 IPC. The
second adverse case was in Crime No.326 of 2009 on the file of C-3 S.S. Colony
(Crime) Police Station registered under Sections 457 and 380 IPC. The third
adverse case was in Crime No.327 of 2009 on the file of C-3 S.S. Colony (Crime)
Police Station registered under Sections 457 and 380 IPC. The ground case was
registered under Sections 392 r/w 397 and 506(ii) IPC in Crime No.330 of 2009 on
the file of C3 SS Colony (Crime) Police Station. In the ground case, the detenu
was arrested on 22.03.2009 and sent to judicial custody on the same day.
Thereafter, his remand period was extended upto 30.04.2009.
3. Learned counsel for the petitioner challenges the detention order on
three grounds, firstly, the solitary instance of law and order problem in the
ground case will not be a ground to come to the conclusion that the detenu is
habitually committing crime; secondly, copies of remand extension orders in the
ground case as well as the second adverse case and third adverse case for the
period from 03.04.2009 to 17.04.2009 were not furnished to the detenu; thirdly,
there was a delay in considering the representation of the detenu.
4. The detenu was arrested in the ground case on 22.03.2009 and he was
charged under Sections 392 r/w 397 and 506(ii) IPC. Only in the ground case, he
was charged under Sections 392 r/w 397 and 506(ii) IPC. Therefore, the learned
counsel for the petitioner relied on the decision of this Court in the case of
Mannar @ Ezhilarasan @ Suresh @ Arif v. State of Tamil Nadu, (2008) 1 MLJ (Crl)
318 and submitted that from one single transaction though consisting of several
acts, a habit cannot be attributed to a person and the stand taken by the
detaining authority that the detenu is habitually committing crime and acted in
a manner prejudicial to the maintenance of public order cannot be sustained. In
the above decision, the decisions reported in AIR 2003 SC 971 in the case of
Darpan Kumar Sharma alias Dharban Kumar Sharma v. State of Tamil Nadu and (2004)
MLJ (Crl.) 306 in the case of Mala v. Secretary to Government, Prohibition and
Excise Department, Government of Tamil Nadu, Chennai and (2006) 2 MLJ (Crl) 374
in the case of R.Kalavathi v. State of Tamil Nadu, were relied upon.
5. As per the decision in the case of Mannar @ Ezhilarasan @ Suresh @ Arif
v. State of Tamil Nadu cited supra, it is clear that solitary act cannot be a
ground to hold that the detenu is an habitual offender. As far as the present
case is concerned, only in the ground case the detenu was arrested under Section
392 r/w 397 and 506(ii) IPC and therefore only in the ground case, there was law
and order problem. Relying on the above decision of this Court, we are of the
considered view that solitary instance cannot be a ground to hold that the
detenu is an habitual offender and therefore, on this ground, the detention
order passed by the second respondent is liable to be set aside.
6. The second ground raised by the counsel for the petitioner is that the
detenu was not given the remand extension orders in the ground case as well as
the second adverse case and third adverse case for the period from 03.04.2009
to 17.04.2009. In 2007(5) CTC 657, a Full Bench of this Court has pointed out
that non-furnishing of relied-on copies of documents to the detenu, in spite of
the request of the detenu, would vitiate the order of detention. In this case,
these documents were not furnished. In the light of the above decision, it is
clear that non-furnishing of the remand extension orders for the period from
03.04.2009 to 17.04.2009 which was relied on by the Detaining Authority, to the
detenu, would vitiate the order of detention. On this ground also, the
detention order is liable to be set aside.
7. The third ground relied on by the counsel for the petitioner is that
there was delay in considering the representation of the detenu. In the
proforma submitted by the learned Additional Public Prosecutor, it is stated
that the file was submitted on 26.05.2009; Under Secretary dealt with on
26.05.2009; Additional Secretary dealt with on 26.05.2009; Minister for PWD and
Law dealt with the representation on 27.05.2009; rejection letter prepared on
01.06.2009; rejection letter sent to the detenu on 03.06.2009 and rejection
letter served to the detenu on 05.06.2009. Though the file was submitted on
26.05.2009, the letter to the detenu was sent only on 03.06.2009. For this, the
learned Additional Public Prosecutor has submitted that it is only a reasonable
delay. 27.05.2009, 28.05.2009 and 29.05.2009 are working days and 30.05.2009
and 31.05.2009 are holidays. The letter was prepared on 01.06.2009 and it was
sent only on 03.06.2009 and received on 05.06.2009. A perusal of the columns 13
to 16 of the proforma would show that there was delay in considering the
representation of the detenu. The delay was also not explained properly with
reason. Therefore, we are of the view that on this ground also, the detention
order is liable to be set aside.
8. For all the above reasons, we are of the considered view this H.C.P is
liable to be allowed and accordingly it is allowed and the order of detention in
No.30/BDFGISSV/2009 dated 28.04.2009 passed by the second respondent is set
aside. The detenu is directed to be released forthwith unless his presence is
required in connection with any other case.
KM
To
1.The Secretary to Government,
Government of Tamil Nadu,
Home, Prohibition and Excise Department,
Fort St.George,
Chennai-600 009.
2.The Commissioner of Police,
Madurai City.
3.The Superintendent of Prison,
Madurai Central Prison,
Madurai.
4.The Secretary,
Advisory Board,
32, Rajaji Salai,
Singaraveler Maligai,
Chennai Collectorate,
Chennai.