Madras High Court
Shanthi vs The State Of Tamil Nadu on 29 June, 2010
Bench: M.Chockalingam, M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/06/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR.JUSTICE M.DURAISWAMY H.C.P.(MD) No.324 of 2010 Shanthi .. Petitioner vs 1.The State of Tamil Nadu, rep. by Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai - 9. 2.The Commissioner of Police, Trichy City, Trichy. 3.The Inspector of Police, Prohibition of Immoral Traffic, All Women Police Station, Cantonment, Trichy. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the records relating to the Detention Order passed by the 2nd respondent in C.P.O./T.C./I.S./D.O.No.76/2009 dated 19.12.2009 and to quash the same and direct the respondents to produce the petitioner before this Court and set the petitioner at liberty, now detained at Special Prison of Women, Trichy. !For petitioner ... Ms.M.Krishnaveni ^For respondents ... Mr.M.Daniel Manoharan Addl.Public Prosecutor :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J) This Writ Application challenges an Order of Detention made by the second respondent on 19.12.2009 whereby the petitioner, Santhi, 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) branding him as a "Immoral Traffic Offender".
2. The Court heard the learned counsel appearing for the petitioner and looked into all the materials available, in particular, the order under challenge.
3. The detenu was involved in three adverse cases as follows:
SlNo Police Station Secttion of Law
Cr.No. & Date
1 Cantonment A.W.P.S. 4(2)(c)ITP Act
(AVS)
Crime No.51/2008
2 Cantonment A.W.P.S. 4(2)(c)ITP Act
(AVS)
Crime No.6/2009
3 Cantonment A.W.P.S. 4(2)(c)ITP Act
(AVS)
Crime No.9/2009
Apart from that, the detenue was involved in one ground case registered by Cantonment All Women Police Station Police Station in Crime No.84/2009 under Sections 4(2)(c) ITP Act for the occurrence that took place on 14.12.2009 and she was arrested on the very day.
4. It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the detenue was involved in three adverse cases and in one ground case referred to above, on scrutiny of the materials, the detaining authority has made the order under challenge branding her as an "Immoral Traffic Offender" after recording its subjective satisfaction that the activities of the detenue were prejudicial to the maintenance of public order and the same is the subject matter of challenge before this Court.
5. Ms.M.Krishnaveni, learned counsel for the petitioner/detenue, would urge in her sincere attempt to set aside the order of detention on the following grounds:-
(i) Though no bail application was filed in the ground case in Crime No.84/2009, it has been stated that there was a real possibility of the detenue coming out on bail. Such an observation was made without any material muchless, cogent material and hence the order has got to be set aside.
(ii) Apart from that, the learned counsel took the Court to the statement alleged to have been recorded in page 31 of the booklet wherein it is found that the statement of one Saraswathi recorded by the investigator and it is also found in the statement that the name of the detenue is Saraswathi @ Sarasu.
While, actually, the name of the detenue is Santhi, against whom the order under challenge has been passed. Under the circumstances, an explanation should have been called for by the detaining authority from the sponsoring authority before passing the order of detention.
(iii) Apart from that, there is delay in consideration of the representation made by the detenue.
6.The Court heard the learned Additional Public Prosecutor on the above contention.
7. As could be seen from the available materials, the detenue was remanded in the ground case in Crime No.84/2000 branding her as an "Immoral Traffic Offender". It has been rightly pointed out by the learned counsel for the petitioner that it is an admitted position that she had not filed any bail application before any Court of criminal law but paragraph No.5 reads as follows:-
"5. I am aware that Santhi is in remand in Cantonment A.W.P.S. Cr.No.84/2009. She has not filed any bail application so far in the ground case in Cantonment A.W.P.S.Cr.No.84/2009. In the adverse cases in Cantonment A.W.P.S.(AVS) Cr.No.51/2008 and Cantonment A.W.P.S.(AVS) Cr.No.9/2009, she filed bail application and she was released on bail. Her sister Saraswathi stated before the Inspector of Police, Cantonment A.W.P.S. that she will take her on bail. From this, I draw the inference that there is a real possibility of her coming out on bail in Cantonment A.W.P.S.Cr.No.84/2009 by filing bail application. If she comes out on bail, she will indulge in future activities which will be prejudicial to the maintenance of public order. ..."
The observation that there is a real possibility of the detenue coming out on bail is nothing but an expression of apprehension in the mind of the detaining authority when no bail application was moved or pending before any Court of criminal law on the day when the order of detention came to be passed and thus, it was made without any material muchless cogent material which the law would expect before recording subjective satisfaction.
8. As rightly pointed out by the learned counsel for the petitioner/detenue, the statement recorded by the investigator as found in page 31 of the booklet, was from one Saraswathi and in the statement, the name of the detenue is found as Saraswathi @ Sarasu but the actual name of the detenue is Santhi as could be seen from all the materials available, in particular, the order of detention. Therefore, the detaining authority should have called for an explanation from the sponsoring authority as to how this statement was recorded but failed to do so, which would indicate the non-application of mind on the part of the detaining authority.
9. Apart from the above, delay is also found in consideration of the representation made. Representation was dated 16.2.2010 and it was received by the detaining authority on 19.2.2010. Remarks were called for on 22.2.2010 but the remarks were received only on 17.3.2010. Thus, there was intervening delay, which would have, certainly, caused prejudice to the interest of the detenue. On all these grounds, the order of detention, which is under challenge, is liable to be set aside.
10. Accordingly, the order of detention is set aside. The detenue is directed to be set at liberty forthwith unless her presence is required in connection with any other case. The Habeas Corpus Petition is allowed.
asvm To
1.The Secretary to Government, Prohibition and Excise Department, Fort St.George, Chennai - 9.
2.The Commissioner of Police, Trichy City, Trichy.
3.The Inspector of Police, Prohibition of Immoral Traffic, All Women Police Station, Cantonment, Trichy.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.