Madras High Court
Pathumuthu vs The State Of Tamil Nadu on 20 April, 2009
Bench: M. Chockalingam, R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20/04/2009
CORAM
THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM
And
THE HONOURABLE MS. JUSTICE R.MALA
H.C.P(MD)No.909 of 2008
Pathumuthu,
W/o. Abbubakkar,
No.20/106, Uttamar Street,
Thiruvitham Code,
Kalkulam Taluk,
Kanyakumari District. ....... Petitioner
Vs
1. The State of Tamil Nadu,
rep. by its Secretary to Government,
Public (Law and Order - F) Department,
Government of Tamil Nadu,
Secretariat, Chennai - 9.
2. The District Collector and District Magistrate,
Kanyakumari District at Nagercoil.
3. The Secretary to Government,
Government of India,
Ministry of Home Affairs
(Department of Internal Security),
North Block, New Delhi - 110 001.
4. The Superintendent of Prison,
Palayamkottai Central Prison.
5. The Secretary,
Advisory Board,
Koovam House,
Swamy Sivanantha Road,
Chennai - 2.
6. The Superintendent of Police,
Kanyakumari District.
7. Deputy Superintendent of Police,
Kanyakumari District.
8. Inspector of Police,
Thakkalai Police Station,
Kanyakumari District. ....... Respondents
Writ of Habeas Corpus filed under Article 226 of the Constitution
of India, praying to call for the records of the second respondent in connection
with the order dated 20.09.2008 in P.D.No.30/N.S.A./2008, detaining the son of
the petitioner under the National Security Act 1980 and to set aside the same
and also to direct the respondents to produce the body and person of the
petitioner's son by name Nazeer, Son of Abbubakkar, aged 24 years, now confined
in the Central Prison, Palayamkottai before this Court and set him at liberty.
!For Petitioner ... Mr. R. Alagumani
^For Respondents ... Mr. P. Krishnasamy for R-3
Central Government Counsel
Mr. M.Danial Manoharan
Additional Public Prosecutor
for R-1, R-2, R-4 to R-8
- - - - - - -
:ORDER
(Order of the Court was delivered by M. CHOCKALINGAM, J.) Challenge is made to the order of detention passed by the second respondent in P.D.No.30/N.S.A./2008 dated 20.09.2008, whereby the son of the petitioner viz., Nazeer was ordered to be detained under the National Security Act, 1980.
2. This Court heard the learned counsel for the petitioner and also looked into all the materials available on record, including the detention order under challenge.
3. Pursuant to the recommendations made by the sponsoring authority that the son of the petitioner viz., Nazeer was involved in three adverse cases in Thuckalay Police Station Crime No.558 of 2008 for the offence under Sections 147, 148, 153(A), 295(A), 296, 294(b), 307 and 506(ii) I.P.C., Crime No. 560 of 2008 for the offence under Sections 147, 148, 436, 427, 506(ii) I.P.C., and 3(1) of TNPPDL Act, Crime No.561 of 2008 for the offence under Section 336, 307 I.P.C., and 3(1) of TNPPDL Act and also in one ground case in Thuckalay Police Station Crime No.564 of 2008 for the offence under Sections 147, 148, 341, 294(b), 342, 324, 307, 295(A) and 506(ii) I.P.C., for the occurrence which took place on 07.09.2008, the detaining authority, who looked into all the materials available on record, arrived its subjective satisfaction that the acts committed by the detenu were prejudicial to the maintenance of the public order and Security of the State and hence, he has got to be detained under the National Security Act and made the order, which is subject matter of challenge in this petition.
4. The order of detention is being attacked by the learned counsel for the petitioner on two grounds. Firstly, it has been specifically stated in the order that the detenu has not filed any bail application so far. But, actually, the detenu has filed bail petitions in three adverse cases and also in one ground case and all those bail petitions are pending before the Principal Sessions Judge, Kanyakumari District at Nagercoil. Added further the learned counsel would submit that there is no material to indicate that all the materials have been placed before the Advisory Board within the stipulated time of three weeks, which would fatally affect the order of detention and therefore, the same is liable to be set aside.
5. This Court heard the submissions of the learned Additional Public Prosecutor appearing for the respondents on the above contentions and paid its anxious consideration to the submissions made.
6. It is not in controversy that pursuant to the recommendations of the sponsoring authority that the detenu was involved in three adverse cases and one ground case, the detention order came to be passed. The detention order under challenge would indicate that considering all the materials available on record, the authorities have recorded their subjective satisfaction that the detenu has committed acts which are prejudicial to the maintenance of public order and Security of the State and therefore, he was detained under the National Security Act, 1980. However, as rightly pointed out by the learned counsel for the petitioner, when the detenu has filed bail petitions in three adverse cases and also in one ground case, which are pending before the Principal Sessions Judge, Kanyakumari District at Nagercoil, in the detention order, it has been specifically stated that he has not filed any bail application. If the sponsoring authority should have placed all the materials before the detaining authority, it may taken into consideration all the relevant aspects. Thus, the sponsoring authority did not allow the detaining authority to consider all the materials available on record, which caused serious prejudice to the interest of the detenu. Hence, on that ground the detention order is liable to be set aside.
7. The second ground of attack is that there is no material to indicate that all the materials have been placed before the Advisory Board within the stipulated period of three weeks and hence, the order of detention suffers. According to the learned counsel for the petitioner, this ground has been raised as a ground in the petition, but the State has no answer in its reply. A duty is cast on the State to inform as to whether all the materials were placed before the Advisory Board. In the absence of any certain reply, it has got to be taken that they were not placed before the Advisory Board. If the same has not been done, the Court has no option except to say that it vitiates the order of detention. Thus, after going through all the materials available on record, this Court is of the considered opinion to set aside the order of detention.
8. Accordingly, this Habeas Corpus Petition is allowed and the order of detention in P.D.No.30/N.S.A./2008 dated 20.09.2008 passed by the second respondent is quashed. The detenu is directed to be released forthwith unless his presence, in accordance with law, is required in connection with any other case.
Dpn/ -
To:
1. The State of Tamil Nadu, rep. by its Secretary to Government, Public (Law and Order - F) Department, Government of Tamil Nadu, Secretariat, Chennai - 9.
2. The District Collector and District Magistrate, Kanyakumari District at Nagercoil.
3. The Secretary to Government, Government of India, Ministry of Home Affairs (Department of Internal Security), North Block, New Delhi - 110 001.
4. The Superintendent of Prison, Palayamkottai Central Prison.
5. The Secretary, Advisory Board, Koovam House, Swamy Sivanantha Road, Chennai - 2.
6. The Superintendent of Police, Kanyakumari District.
7. Deputy Superintendent of Police, Kanyakumari District.
8. Inspector of Police, Thakkalai Police Station, Kanyakumari District.
9. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.