Madras High Court
P.Sivakami vs The State Of Tamil Nadu on 16 August, 2012
Author: M.M.Sundresh
Bench: M.M.Sundresh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16/08/2012 CORAM THE HONOURABLE Ms.JUSTICE K.SUGUNA and THE HONOURABLE Mr.JUSTICE M.M.SUNDRESH H.C.P.(MD)No.634 of 2012 P.Sivakami ... Petitioner Vs 1.The State of Tamil Nadu, rep.by its Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-9. 2.The District Collector/ District Magistrate, Collectorate, Thirunelveli District. 3.The Superintendent of Central Prison, Palayamkottai Central Prison, Thirunelveli District. 4.The Chairman, Advisory Board, No.32, Rajaji Salai, Singaravavelar Maaligai, Ground Floor, Backside Entrance, Chennai Collectorate, Chennai-600 001. ... Respondents Petition under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus calling for the entire records connected with the detention order of the Respondent No.2, in A.Me.Ku.Manthanam No.35/2012, dated 27.04.2012, quashing the same and consequently setting the detenu P.Saravanakumar @ Saravanaperumal @ Vellaiyan @ Saravanan, 24/12) now confined at Central Prison, Palayamkottai, at liberty. !For Petitioner ... Mr.T.Lajapathi Roy ^For Respondents ... Mr.P.Jothi, Addl.Public Prosecutor. :ORDER
(Order of the Court was made by M.M.SUNDRESH, J) The Petitioner, who is the mother of the detenu, who has been detained under 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 14/1982), has come forward to file this Writ Petition to quash the detention order, dated 27.04.2012, issued by Respondent No.2.
2.Learned counsel appearing for the Petitioner would submit that the detention order is liable to be quashed, as there is an unexplained delay of six days, in considering the representation of the detenu, between the period when the file was initially dealt with by the Under Secretary on 18.05.2012 and the rejection letter was prepared on 28.05.2012. The second submission made by the learned counsel for the Petitioner is that the provisions contained in Section 8 of the Tamil Nadu Act 14/1982 have been violated, inasmuch as the documents pertaining to the detention order have been served on the detenu, after the period of five days from the date of detention order. Yet another submission made by the learned counsel for the Petitioner is that the detention order is liable to be set aside on the ground of non-application of mind on the part of the detaining authority. In the absence of any bail application pending, there is no apprehension warranting passing of the detention order on the ground that there was a real possibility of the detenu coming out on bail and if he comes out on bail, he would cause hindrance to maintenance of public order. Finally, learned counsel for the Petitioner submitted that the similar case in which bail was granted and relied upon by the detaining authority, namely Respondent No.2, from which he has come to the conclusion that the detenu would come out on bail in the ground case, has got no relevancy as the offences involved in the said case is totally different from that of the present case and therefore even on this ground of non-application of mind also the detention order is liable to be set aside. In support of his submissions, the learned counsel for the petitioner relied upon the following judgments.
(i)(2012) 1 MLJ (Crl) 602 - Tharmar v. State of T.N.
(ii)(2011) 1 MLJ (Crl) 513 - Malleeswariv. State
3.Heard the learned Additional Public Prosecutor appearing for the Respondents on the submissions made by the learned counsel for the Petitioner.
4.A perusal of the records would show that the file relating to the representation of the detenu has been circulated to the Deputy Secretary to the Government on 18.05.2012 and thereafter it has been sent to the Hon'ble Minister for Electricity and P & E, on 23.05.2012. After the file was dealt with by the Hon'ble Minister concerned, rejection letter was prepared only on 28.05.2012. There is absolutely no explanation in the counter affidavit filed for the delay of three days on each occasion, even after excluding the intervened Government Holidays. Therefore, we are of the view that on the ground of delay in considering the representation of the detenu, the detention order is liable to be set aside, as held by this Court in Tharmar vs. State of Tamil Nadu - (2012) 1 MLJ (Crl) 602, cited supra.
5.Insofar as the contention regarding non-application of mind is concerned, we are of the view that the detention order is liable to be set aside even on that score. We have perused the bail order granted in similar case, relied upon by the detaining authority to come to the conclusion that the detenu would be released on bail in the ground case. The offences mentioned in the said bail order, in which the accused therein was enlarged on bail in Crl.M.P.No.1835/2011 on the file of Court of Session, Tirunelveli Division, were under Sections 294(b), 387 and 506(ii) IPC. Insofar as the detenu is concerned, the ground case in which he is said to be involved is for the alleged offences under Sections 294(b), 307 and 506(ii) IPC. The basis upon which the detaining authority has exercised power has no factual basis and therefore the detention order is liable to be set aside.
6.Even though we are inclined to set aside the impugned detention order on the above two grounds, we are inclined to go into the ground raised by the learned counsel for the Petitioner that the provisions of Section 8(1) of the Act has been violated and therefore the detention order is liable to be set aside. According to the learned counsel for the Petitioner, as per Section 8(1) of the Act, the documents pertaining to the order of detention should be served on the detenu within five days from the date of the order but, it was served on him with a delay of one day and hence the detention order is liable to be set aside on this ground. Admittedly, in the present case, the detention order was passed on 27.04.2012 and all the documents pertained to the detention order were served on the detenu on 02.05.2012. A bare reading of Section 8(1) of the Act, would clearly reveal that the date on which the detention order was passed has to be excluded. It is trite law that while interpreting statues a literal, simple and natural meaning will have to be given. Considering the word "from" as occurred in Section 9 of the General Clauses Act, 1897, it has been held by the Hon'ble Apex Court in Tarun Prasad Chatterjee v. Dinanath Sharma - (2000) 8 SCC 649, as under in paragraph Nos.10 to 12.
"10.Section 9 of the General Clauses Act 1897 gives statutory recognition to the well-established principle applicable to the construction of statutes that ordinarily in computing the period of time prescribed, the rule observed is to exclude the first and include the last day.
11.In Halsbury's Laws of England, 37th Edn., Vol.3, p.92, it is stated as follows:
"Days included or excluded.-- When a period of time running from a given day or even to another day or event is prescribed by law or fixed as contract, and the question arises whether the computation is to be made inclusively or exclusively of the first-mentioned or of the last mentioned day, regard must be had to the context and to the purposes for which the computation has to be made. Where there is room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties, as the case may be. Expressions such as 'from such a day' or 'until such a day' are equivocal, since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule, however, the effect of defining a period in such a manner is to exclude the first day and to include the last day."
12.Section 9 says that in any Central Act or regulation made after the commencement of the General Clauses Act, 1897, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word "from", and, for the purpose of including the last in a series of days or any period of time, to use the word "to". The principle is that when a period is delimited by statute or rule, which has both a beginning and an end and the word "from" is used indicating the beginning, the opening day is to be excluded and if the last day is to be included the word "to" is to be used. In order to exclude the first day of the period, the crucial thing to be noted is whether the period of limitation is delimited by a series of days or by any fixed period. This is intended to obviate the difficulties or inconvenience that may be caused to some parties. For instance, if a policy of insurance has to be good for one day from 1st January, it might be valid only for a few hours after its execution and the party or the beneficiary in the insurance policy would not get reasonable time to lay claim, unless 1st January is excluded from the period of computation."
7.Considering the ratio laid down by the Hon'ble Apex Court, we are of the view that the date of detention order will have to be excluded for the purpose of calculating five days period, which has been mentioned under Section 8(1) of the Act, for communicating documents pertaining to the detention order. Therefore, this contention of the learned counsel for the Petitioner is liable to be rejected and accordingly rejected.
8.Even though the learned counsel for the Petitioner has raised other contentions, we are not inclined to go into the same, as we are allowing the writ petition on the first two grounds.
9.In the result, the habeas corpus petition is allowed and the detention order dated 27.04.2012, passed by Respondent No.2 is quashed. The detenu is directed to be set at liberty, forthwith, unless his presence is required in connection with any other case or cause.
gb To
1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-9.
2.The District Collector/ District Magistrate, Collectorate, Tirunelveli.
3.The Superintendent of Central Prison, Palayamkottai Central Prison, Tirunelveli District.
4.The Chairman, Advisory Board, No.32, Rajaji Salai, Singaravavelar Maaligai, Ground Floor, Backside Entrance, Chennai Collectorate, Chennai-600 001.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.