Madras High Court
Ponmalar 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 HABEAS CORPUS PETITION(MD) No.1106 of 2012 Ponmalar ... Petitioner Vs. 1.The State of Tamil Nadu, rep. by its Secretary, Home Prohibition and Excise (XIV) Department, Secretariat, Chennai - 600 009. 2.The Commissioner of Police, Tirunelveli City, Tirunelveli. ... Respondents Petition is filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus calling for the records from the second respondent in No.35/BDFGISSV/2012 dated 12.4.2012 on the file of the 2nd respondent herein and quash the same and direct the respondents to produce the petitioner's husband A.Isac, aged 32 years, S/o.Ayyadurai Nadar, who is now confined in the Central Prison, Palayamkottai, Tirunelveli as TPDA detenu 400 before this Court and set him at liberty. !For Petitioner ... Mr.AR.Jeyarhuthran ^For Respondents... Mr.C.Ramesh Additional Public Prosecutor :ORDER
[Order of the Court was made by M.JAICHANDREN, J] The petitioner is the wife of the detenu, A.Isac, aged 32 years, S/o.Ayyadurai Nadar, who has been detained, under sub section (1) of section 3 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 'Tamil Nadu Act 14 of 1982'), pursuant to the order passed by the second respondent, in his proceedings, in No.35/BDFGISSV/2012, dated 12.4.2012. In view of the detention order passed by the second respondent dated 12.4.2012, the detenu had been lodged in Central Prison, Palayamkottai. The present Habeas Corpus petition has been filed before this Court, challenging the detention order of the second respondent, dated 12.4.2012.
2. The main contention raised on behalf of the petitioner is that there was no real possibility of the detenu coming out on bail and indulging in activities prejudicial to the maintenance of public order. The learned counsel appearing on behalf of the petitioner had submitted that there were no materials available before the Detaining Authority to arrive at such a conclusion. As such, the Detaining Authority had arrived at the conclusion, without proper application of mind.
3. The learned counsel appearing on behalf of the the petitioner had submitted that the Detaining Authority concerned had stated, in the grounds of detention, that there is a real possibility of the detenu coming out on bail, as an order had been passed, in a similar case, wherein bail had been granted. However, the relevant papers relating to the said case, stated to be similar in nature, had not been furnished to the detenu except the bail order copy. Therefore, the impugned detention order passed against the detenu is arbitrary, illegal and void, as held in Rekha Vs.State of Tamil Nadu, (2011 (5) SCC 244) and in a recent decision, in Huidrom Konungjao Singh Vs. State of Manipur, reported in 2012 (3) MLJ (Crl) 794 (SC).
4. The learned counsel had pointed out that the Detaining Authority concerned had mentioned about the similar case, in paragraph 6 of the grounds of detention. The relevant paragraph of the grounds of detention reads as follows:-
"6. I am aware that Thiru.A.Isac was produced before the Judicial magistrate No.I (in-charge), Tirunelveli on 22.3.2012 and remanded at Central Prison, Palayamkottai on that day itself. He was produced before the Judicial Magistrate No.I (in charge) Tirunelveli on 9.4.2012 through video conferencing and his remand was extended upto 23.4.2012. I am aware that he is in remand in connection with the cases in Palayamkottai Crime Police Station Crime Number 1067/2011 under Section 457, 380 Indian Penal Code, Tirunelveli Medical College Hospital Crime Police Station Crime Number 6/2012 under Section 392 Indian Penal Code, Tirunelveli Medical College Hosptial crime Police Station crime Number 52/2012 under Section 392 Indian Penal Code, Perumalpuram Crime Police Station Crime Number 415/2012 under Section 457, 511 Indian Penal Code and Palayamkottai crime Police Station Crime Number 432/2012 under Section 392 Indian Penal Code. He has not filed any bail application so far. In a similar case registered in Tirunelveli Junction crime Police Station Crime No.143/2010 under Section 392 Indian Penal Code, bail was granted to the accused Thiru.Esakkimuthu by the Judicial Magistrte No.IV, Tirunelveli in Cr.M.P.No.8048 on 23.12.2011. Hence, there is a real possibility of Thiru.A.Isac's coming out on bail by filing a bail application for the cases in Palayamkottai Crime Police Station Crime Numbers 1067/2011 and 432/2012, Perumalpuram Crime Police Station Crime Number 415/2012 and Tirunelveli Medical College Hospital Crime Police Station Crime Numbers 6/2012 and 52/2012 before the appropriate court. If Thiru.A.isac comes out on bail, he will indulge in such further activities which will be prejudicial to the maintenance of public order. Further, the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of public order. On the materials placed before me, I am fully satisfied that the said Thiru.A.Isac is a Goonda and there is compelling necessity to detain him in order to prevent him from indulging in such further activities in future, which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14 of 1982."
5. Per contra, the learned Additional Public Prosecutor, appearing on behalf of the respondents, had submitted that, in view of the fact that an order had been passed, in a similar case, granting bail, as stated by the Detaining Authority, in paragraph 6 of the grounds of detention, there is a real possibility of the detenu coming out on bail and indulging in activities prejudicial to the maintenance of public order.
6. In the present case, from the records available before this Court, it is noted that none of the relevant papers relating to the similar case mentioned by the Detaining Authority had been furnished to the detenu, except a copy of the bail order said to have been passed by the Court concerned. Hence, the impugned order of detention passed by the Detaining Authority is liable to be set aside.
7. In such circumstances, this Court is of the considered view that the conclusion of the Detaining Authority that there was real possibility of the detenu coming out on bail and indulging in activities prejudicial to the maintenance of public order cannot be sustained, as it is not based on all the relevant and necessary materials. Further, there has been no proper application of mind, by the Detaining Authority, before arriving at such a conclusion. As such, this Court finds it appropriate to quash the impugned detention order. Accordingly, the impugned Detention Order, passed by the second respondent, dated 12.4.2012, is quashed, and the Habeas Corpus petition stands allowed. The detenu is directed to be set at liberty, forthwith, unless his detention is required in connection with any other case or cause.
asvm To
1.The Secretary, Government of Tamilnadu, Home Prohibition and Excise (XIV) Department, Secretariat, Chennai - 600 009.
2.The Commissioner of Police, Tirunelveli City, Tirunelveli.
3.The Additional Public Prosecutor, Madurai Bench of the Madras High Court, Madurai.