Madras High Court
Siva Alias Sivakumar vs The Secretary To Government on 22 November, 2012
Author: M.Jaichandren
Bench: M.Jaichandren
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22/11/2012
CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
and
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
H.C.P(MD)No.1253 of 2012
Siva alias Sivakumar .. Petitioner
vs.
1.The Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai-600 009.
2.The District Magistrate and District Collector,
Virudhunagar District,
Virudhunagar.
3.The Superintendent of Prison,
Madurai Central Prison,
Madurai 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 Cr.M.P.No.40/2012, dated 26.09.2012
and quash the same and direct the respondents to produce the detenu namely Siva
@ Sivakumar, Son of Murugesan, aged about 37 years, detained in Madurai Central
Prison, before this Court and set him at liberty forthwith.
!For petitioner ... Mr.R.Alagumani
^For respondents ... Mr.C.Ramesh
Addl.Public Prosecutor
:ORDER
(Order of the Court was made by S.NAGAMUTHU, J) Challenge in this Habeas Corpus Petition is to the Detention Order, dated 26.09.2012 passed by the second respondent in his proceedings in Cr.M.P.No.40/2012, by which the second respondent has held that the petitioner is a Goonda and has ordered him to be detained at Central Prison, Madurai, under Section 3(1) 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 (in short "the Act).
2. Though several grounds have been raised in this Habeas Corpus Petition, the learned Counsel appearing for the petitioner would mainly contend that in the grounds of detention, the Detaining Authority has stated that the detenu has filed bail petition in the ground case before the Principle Sessions Court, Srivilliputhur in Cr.M.P.No.4707/12 and it is pending. Having referred to the same, the Detaining Authority has further observed as follows:-
"....... there is a real possibility of his (Thiru.Siva @ Sivakumar) coming out on bail in the above said Cr.No.4707/2012, since bails are granted by the Court in such cases. "
3. The learned counsel would further submit that to arrive at such a conclusion that there was real possibility of the detenu coming out on bail, there was no material available on record. The learned counsel would further point out that though it is stated in the grounds of detention that in similar cases, bails are granted by the Courts concerned, the details of such cases, upon which the Detaining Authority had come to the said conclusion, have not been furnished.
4. In this regard, the learned counsel for the petitioner would rely on the Judgment of a Division Bench of this Court in Jothi Vs the Secretary to Government, reported in 2012 (2) LW (Crl) 527 wherein, in identical circumstances, in Paragraph No.17, the Division Bench has held as follows:-
"17. Further, unless, the similar cases referred to by the Detaining Authority, in the grounds of detention, are comparable with the cases relating to the detenu, in all aspects, it would not be open to the Detaining Authority to arrive at his conclusion that the detenu would be enlarged on bail. In the present case, It has not been shown that all the relevant materials relating to the similar cases, referred to by the Detaining Authority had been furnished to the detenu, in order to enable him to make an effective representation against the detention order. The failure of the Detaining Authority to furnish all the materials would, no doubt, cause substantial prejudice to the detenu, resulting in the failure on the part of the Detaining Authority in following the mandate, enshrined in Clause(5) of the Article 22 of the Constitution of India."
5. Relying on the above Judgment of the Division Bench, the learned counsel would submit that in the case on hand also, since the materials relating to the similar case have not been furnished to the detenu and since the satisfaction arrived at by the Detaining Authority is not based on any relevant materials, the Detention Order is liable to be set aside.
6. Heard the learned Additional Public Prosecutor on the submissions made by the learned counsel for the petitioner.
7. Keeping in view the above legal principles, if we look into the facts involved in the case, there can be no dispute that the detaining authority had come to the conclusion that there is real possibility of the accused coming out on bail and the said conclusion is based on the fact that in a similar case in Crime No.842/2011 on the file of Virudhunagar West Police Station, bail was granted to the accused therein. But, it is the contention of the petitioner that relevant documents relating to the said case, such as FIR, Mahazar etc., have not been furnished. To the contrary, only copy of the bail order has been given. In our considered opinion, non-furnishing of all these material documents to the detaining authority and non-consideration of the same would only indicate the total non-application of mind on the part of the detaining authority. The detaining authority in a mechanical fashion only on considering the bail order has come to the conclusion that there is a real possibility of the detenu coming out on bail.
8. The preventive detention is made not by way of punishment, but it is only by way of prevention. Though the same has got constitutional sanction, it pre-supposes adherence to the constitutional safeguards. In this case, the said safeguards, as we have pointed out, have not been complied with. Therefore, the impugned Detention Order is liable to be set aside.
9. Accordingly, this Habeas Corpus Petition is allowed and the impugned Detention Order passed by the second respondent, in his proceedings in Cr.M.P.No.40/2012 dated 26.09.2012, is quashed. The detenu, by name, Thiru.Siva @ Sivakumar, aged 37 years, S/o.Murugesan, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.
jikr To
1.The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.
2.The District Magistrate and District Collector, Virudhunagar District, Virudhunagar.
3.The Superintendent of Prison, Madurai Central Prison, Madurai District.
4.The Additional Public Prosecutor, Madurai Bench of the Madras High Court, Madurai.