Madras High Court
A.Joseph vs The State Of Tamil Nadu on 5 December, 2012
Author: M.Jaichandren
Bench: M.Jaichandren
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/12/2012 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN and THE HONOURABLE MR.JUSTICE S.NAGAMUTHU H.C.P(MD)No.1316 of 2012 A.Joseph .. Petitioner vs. 1.The State of Tamil Nadu, represented by its Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 9. 2.The Commissioner of Police, O/o.Commissioner of Police, Tirunelveli City. 3.The Superintendent of Central Prison, Palayamkottai Central Prison, Tirunelveli District. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus calling for the entire records connected with the detention order of the Respondent No.2 in No.134/BDFGISSV/12 dated 5.10.2012 and quash the detention order and produce the body of the petitioner's son, namely, J.Rajkumar @ Prabakaran @ Raja (25/12) now confined at Palayamkottai Central Prison before this Court and set him at liberty forthwith. !For petitioner ... Mr.S.Rajasekar for M/s.T.Lajapathi Roy ^For respondents ... Mr.C.Ramesh, Additional Public Prosecutor :ORDER
(Order of the Court was made by S.NAGAMUTHU, J) The petitioner is the father of the detenu, Mr. J.Rajkumar @ Prabakaran @ Raja. The second respondent, by his proceedings in No.134/BDFGISSV/2012 dated 5.10.2012, has detained him under Section 3(1) and (2) of the Tamil Nadu Act 14 of 1982. Challenging the same, the petitioner is before this Court with this Habeas Corpus Petition.
2. The detenu, at the time of detention order, was in Palayamkottai Central Prison on an order of judicial remand made by the learned Judicial Magistrate No.I, Tirunelveli on 2.10.2012 in connection with Palayamkottai Police Station Crime Nos.342 of 2012 under Section 147 IPC r/w 3(1)(b) of the Tamil Nadu Property (Prevention of Damage and Loss) Act and 1665 of 2012 under Sections 341, 294(b) IPC r/w 3(1)(b) of the Tamil Nadu Property (Prevention of Damage and Loss) Act. His remand period was to expire on 16.10.2012.
3. According to the detaining authority, he moved a bail application before the District and Sessions Court, Tirunelveli in Cr.M.P.No.4695 of 2012 on 3.10.2012 in connection with the case in Palayamkottai Police Station Crime No.1665 of 2012 and the same is pending. But, in respect of the case in Crime No.342 of 2012, he had not moved any bail application. But, in Paragraph No.6 of the detention order, the detaining authority has stated as follows:-
"Hence, I infer that it is very likely of Thiru.J.Rajkumar alias Prabakarna alias Raja's coming out on bail in connection with the case in Palayamkottai Police Station Crime No.1665 of 2012 and there is also real possibility of the detenu coming out on bail by filing bail application in connection with the case in Palayamkottai Police Station Crime No.342 of 2012 before the appropriate court."
4. The learned counsel appearing for the petitioner would submit that the said conclusion arrived at by the detaining authority is totally baseless. In other words, according to him, there were no materials before the detaining authority to satisfy itself that there was real possibility of the accused coming out on bail in both the cases.
5. But, the learned Additional Public Prosecutor would submit that the satisfaction is based on materials. According to him, since bail application had been filed in connection with the case in Crime No.1665 of 2012, there was likelihood of him coming out on bail. He would further submit that, the detenu might file bail application in Crime No.342 of 2012 also.
6. In our considered opinion, the contention of the learned Additional Public Prosecutor cannot be accepted. The preventive detention is basically preventive in nature and not punitive. As such, preventive detention has got a constitutional guarantee. But, before passing an order of preventive detention, thereby, curtailing the fundamental rights of the detenu, the procedural safeguards contemplated should be scrupulously adhered to by the detaining authority.
7. In this case, the detaining authority has simply stated that the accused was likely to come out on bail. When the accused did not file bail application in one case, it is not known as to how the detaining authority had come to such a conclusion. There is no other case cited which is similar in nature where the accused had been granted bail by the Courts of law.
8. Thus, in our considered opinion, the statement of the detaining authority that he was satisfied that there was real possibility of the detenu coming out on bail is totally baseless. This only shows the non-application of mind on the part of the detaining authority. Hence, the detention order cannot be sustained.
9. In the result, the impugned Detention Order passed by the second respondent, in his proceedings in No.134/BDFGISSV/2012, dated 05.10.2012, is quashed and the Habeas Corpus Petition is allowed. The detenu, by name, J.Rajkumar @ Prabakaran @ Raja, aged about 25 years, S/o. Joseph, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.
asvm To
1.The Secretary to Government, Government of Tamil Nadu, Home, Prohibition and Excise Department, Secretariat, Chennai - 9.
2.The Commissioner of Police, O/o.Commissioner of Police, Tirunelveli City.
3.The Superintendent of Central Prison, Palayamkottai Central Prison, Tirunelveli District.
4.The Additional Public Prosecutor, Madurai Bench of the Madras High Court, Madurai.