Madras High Court
D.Uma Maheswari vs The Secretary To Government on 28 April, 2009
Bench: M.Chockalingam, R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/04/2009 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM and THE HONOURABLE Ms. JUSTICE R.MALA H.C.P.(MD) No.17 of 2009 D.Uma Maheswari .. Petitioner vs. 1.The Secretary to Government, Prohibition and Excise Department, Government of Tamil Nadu, Fort St.George, Chennai - 9. 2.The Commissioner of Police, Madurai City, Madurai. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the records of the 2nd respondent in detention order No.81/BDFGISSV/2008 dated 25.10.2008 and quash the same and consequently, directing the respondents to produce the detenu namely, "Dineshkumar" who is detained at Central Prison at Madurai before this Court and set him at liberty. !For petitioner ... Mr.V.Thirumal ^For respondents... Mr.Daniel Manoharan Addl.Public Prosecutor :ORDER
(Order of the Court was made by M.CHOCKALINGAM, J) This Writ Application challenges an order of the second respondent made in detention order No.81/BDFGISSV/2008 dated 25.10.2008 whereby 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) branding him as a "Goonda".
2. The Court heard the learned counsel appearing for the petitioner and looked into all the materials available including the order under challenge.
3. Pursuant to the recommendation made by the sponsoring authority that the detenu was involved in four adverse cases viz., Crime No.617/2008 under Section 379 of the IPC registered by C5 Karimedu (Crime) PS; Crime No.771/2008 under 379 of the IPC registered by C5 Karimedu (Crime) PS; Crime No.1307/2008 under Section 379 IPC registered by Thilagarthidal (Crime) PS; Crime No.1511/2008 under Section 379 IPC registered by C5 Karimedu (Crime) PS and in one ground case in Crime Ndo.1558/2008 under Section 392 r/w 397, 506(ii) IPC registered by C5 Karimedu (Crime) PS, after looking into the materials available, the detaining authority recorded his subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and that he should be detained under the law of preventive detention and accordingly, made the order of detention, which is the subject matter of challenge before this Court.
4. The order under challenge is attacked by the learned counsel for the petitioner on the following grounds:-
(i) Firstly, there was a pre-detention representation sent by the mother of the detenu on 11.9.2008 was not considered. The learned counsel took the Court to the counter affidavit filed by the respondents' side where in it is clearly admitted receipt of pre-detention representation which states that the detenu was kept in illegal custody of the Karimedu Police Personnel from 9.9.2008 to 12.9.2008. Thus, non-consideration of the representation made by the mother of the detenu dated 11.9.2008 would certainly cause prejudice to the interest of the detenu. Hence, it would affect the order under challenge.
(ii) Further, wife of the detenu has sent another representation dated 16.10.2008. It was also not considered.
(iii) Insofar as the ground case and four adverse cases are concerned, in the F.I.R. pertaining to four adverse cases, the name of the detenu is not mentioned but he was taken to the police station and kept under illegal custody. Certainly, it would affect the order under challenge.
(iv) Added further the learned counsel that, at the time of passing the order of detention, the detenu was in remand in the ground case in Crime No.1558/2008. Insofar as adverse cases viz., Crime No.617/2008, 771/2008 and 1511/2008, bail applications filed in Crl MP Nos.3892/2008, 3894/2008 and 3973/2008 respectively were dismissed by the Judicial Magistrate No.5, Madurai on 22.9.2008. Insofar another adverse case in Crime No.1307/2008 and the ground case in Crime No.1558/2008, bail application filed in Crl.M.P.Nos. 3313/2008 and 3889/2008 were dismissed on 22.10.2008 and 17.9.2008 respectively by the Judicial Magistrate No.2, Madurai and Judicial Magistrate No.5, Madurai respectively. Similarly, again bail applications filed in Crl MP Nos.4188/2008, 4189/2008, 4187/2008 filed in respect of Crime Nos.617/2008, 771/2008, 1511/2008 respectively were dismissed on 15.10.2008 by the Judicial Magistrate No.5, Madurai. Further, the detenu had filed another bail application before the Principal District and Sessions Judge, Madurai in all the above three adverse cases and ground case and they are pending disposal when the order came to be passed. But the the detaining authority has stated in its order that there was a real possibility of the detenu coming out on bail. Thus, it would be an indicative of the fact that the detaining authority has prejudged the result of the bail applications without any material or basis whatsoever. Under the circumstances, it would affect the order of detention.
(v) There was delay in consideration of the representation. Actually, representation was received on 28.11.2008, remarks were called for on 1.12.2008, remarks were received on 11.12.2008. Thus, there was delay of 10 days. Apart from that, Minister for PWD & Law dealt with the representation on 12.12.2008, rejection letter was prepared on 18.12.008. Thus, there was delay of 6 days in preparing the rejection letter.
5.The Court heard the learned Additional Public Prosecutor on the above contention and paid its anxious consideration on the submissions made.
6. It is not in controversy that the detenu was involved in four adverse cases and in one ground case. Insofar as the ground case was concerned, it was registered in Crime No.1558/2008 under Sections 392 r/w 397, 506(ii) IPC by C5 Karimedu (Crime) PS for the incident that took place on 13.9.2008. The detenu was arrested on the same day. According to the learned counsel for the petitioner, there was a pre-detention representation made on 11.9.1998 alleging that the detenu was kept under illegal custody from 9.9.2008 itself. This pre- detention representation is well admitted in the counter affidavit. Under the circumstances, the said pre-detention representation should have been considered before passing the order of detention but there is nothing to indicate that the pre-detention representation was either placed before the detaining authority or was considered by the detaining authority. Hence, non-consideration of the pre- detention representation would certainly affect the order of detention since it has caused prejudice to the interest of the detenu.
7. Further, it is not in controversy that in respect of the five cases, namely, four adverse cases and one ground case, he made bail applications as referred to above and such bail applications were dismissed and thereafter, the detenu filed bail applications before the Court of Sessions and all these applications were pending on the day when the order came to be passed. Under the circumstances, the observation made by the detaining authority that there was a real possibility of the detenu coming out on bail would indicate his prejudgment of the situation where bail could be granted or refused. It is only apprehension in the mind of the detaining authority. To pass an order of detention, there must be specific material in the hands of the detaining authority. In the instant case, no such material was available. Hence, it would affect the order of detention.
8. Apart from the above, the Court is able to notice undue delay in consideration of the representation. Actually, representation was received on 28.11.2008, remarks were called for on 1.12.2008, remarks were received on 11.12.2008. Thus, there was delay of 10 days. According to the prosecution, there were two Government Holidays. Even assuming that there was 3 intervening Government holidays, there was 7 days holiday, which were main unexplained. Apart from that, Minister for PWD & Law dealt with the representation on 12.12.2008, rejection letter was prepared on 18.12.008. Thus, there was delay of 6 days in preparing the rejection letter. According to the prosecution, there were two days intervening holidays. Even if to be so, there were four days holidays which remain unexplained. In the considered opinion of the Court, the undue delay and unreasonable delay would be indicative of lack of promptitude on the part of the officers. Hence, it has also caused prejudice to the interest of the detenu.
9. Hence, on the grounds referred to above, the order of detention has got to be set aside. Accordingly, the order of detention is set aside. The detenu is directed to be set at liberty forthwith unless he 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, Government of Tamil Nadu, Fort St.George, Chennai - 9.
2.The Commissioner of Police, Madurai City, Madurai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.