Madras High Court
Kutti Raja Alias Raja vs Government Of Tamilnadu on 29 April, 2005
Author: P.K.Misra
Bench: P.K.Misra
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29/04/2005 CORAM THE HONOURABLE MR.JUSTICE P.K.MISRA AND THE HONURABLE MR.JUSTICE AR.RAMALINGAM Habeas Corpus Petition (MD).52 of 2005 In the matter of detention of one Kutti Raja @ Raja, S/o.Paramasivam Thevar, under Tamil Nadu Act 14 of 1982 branding him as a 'Goonda'. Kutti Raja alias Raja ... Petitioner vs. 1.Government of Tamilnadu, rep.by its Secretary, Prohibition and Excise Department, Secretariat, Chennai-9. 2.The District Collector and District Magistrate, Theni District at Theni. ... Respondents Petition under Article 226 of the Constitution of India, praying for issuance of writ of habeas corpus by calling for the records pertaining to the proceedings of the second respondent made in Detention Order No.04/2004, dated 15.10.2004, quash the same and set the petitioner at liberty from Central Prison, Madurai. !For Petitioner ... Mr.S.Palanivelayutham ^For Respondents ... Mr.K.Radhakrishnan Additional Public Prosecutor. :ORDER
The order of preventive detention under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest-offenders, Goondas, Immoral Traffic Offenders and Slum-grabbers Act, 1982 has been challenged by the detenu himself. The order of detention, dated 15.10.2004, is on the allegation that the detenu is a "Goonda" as defined in Tamilnadu Act 14 of 1982.
2.In the grounds of detention, reference has been made to several adverse cases, including Rayappanpatty Police Station Crime No.346 of 2004 registered under Sections 147, 148, 109, 114 and 302 I.P.C. The ground case, on the basis of which the order of detention has been passed, is registered as Rayappanpatty Police Station Crime No.347 of 2004 under Sections 382, 506(ii) (in the grounds of detention indicated as 546(ii)) and 379 I.P.C. In paragraph 7 of the grounds of detention, a reference has been made to the fact that the detenu surrendered before the Judicial Magistrate No.1, Dindigul, on 15.09.2004 in connection with Crime No.346 of 2004 of Rayappanpatty Police Station and thereafter the detenu was kept under police custody on 23.09.2004 and subsequently produced before the Judicial Magistrate on 24.09.2004. In paragraph 9 of the grounds of detention, it is stated that the detenu has been remanded to judicial custody upto 22.10.2004. It has been further recited "...... However, there is an imminent possibility of moving bail and coming out on bail. I am also aware that bails are granted by the same Court or the Higher Courts in the cases of this nature after efflux of certain time. If he is let to remain at large, he is likely to indulge in such further activities in future, which are prejudicial to the maintenance of Public order......"
3.The learned counsel appearing for the petitioner, relying upon several earlier decisions of this Court, has contended that the aforesaid conclusion of the detaining authority regarding the possibility of the detenu being released on bail is mechanically recorded without any application of mind. It has been submitted by him, in our opinion rightly, that the recital to the effect that bails are granted by the same Court or higher Courts in the cases of this nature refers to the ground case which has been registered on the allegation that offences under Sections 382, 506(ii) and 379 IPC had been committed. Learned Additional Public Prosecutor appearing for the State also submitted that the aforesaid reference relates to the ground case. At any rate, it is not clear whether the reference is to the alleged offence committed in the ground case or the alleged offence committed in Rayappanpatty Police Station Crime No.346 of 2004.
4.In the aforesaid context, the counsel for the petitioner has referred to a Division Bench decision of this Court in 1995-1-L.W.(Crl)333 - (Dharmar vs. State of Tamil Nadu and another). In the said case, the detenu was allegedly involved in commission of a serious crime like 302 IPC in the adverse case and subsequently was allegedly involved in offences under Sections 341, 342, 323, 427 and 506(ii) IPC and the detaining authority had recorded his satisfaction about the imminent possibility of such accused person coming out on bail for the offences under Sections 341, 342, 323, 427 and 506(ii) IPC by filing bail application. Further, no reference was at all made to the fact that the very same accused was also involved in a more serious offence for which bail was yet to be granted and without considering these aspects, the conclusion had been recorded in the grounds of detention. The Division Bench thereafter concluded:
"9.In such state of affairs, we are of the opinion that there was utter non-application of mind on the part of the second respondent-Detaining Authority as respects the imminent possibility of the detenu coming out on bail and further indulging in prejudicial activities affecting the maintenance of public order. In this view of the matter, as rightly contended by learned counsel for the petitioner,,the impugned order of detention is liable to be set aside and the same is accordingly set aside. ..."
5.The aforesaid Division Bench decision has been very recently followed by another Division Bench in a decision reported in 2004-2-L.W.(Crl.)681-(Ameer v. The State of Tamil Nadu & another). Relying upon the earlier decision, the Division Bench observed that when the alleged offence in the adverse case was much more serious and the detaining authority only considered the possibility of the accused being released on bail in the ground case which was less serious without considering the impact of the adverse case which was more serious in nature on the possibility of the detenu being release on bail, the order of detention was vitiated due to non-application of mind.
6.In the present case, it is not clear as to whether the detaining authority was referring the adverse case, dated 13.09.2004 or the ground case, dated 15.09.2004, while coming to the conclusion regarding the imminent possibility of the detenu being released on bail. It is submitted by the petitioner that obviously the detaining authority was referring to the latter case or the ground case.
7.Even the learned Additional Public Prosecutor also contended that the reference is to the ground case. If this be so, it is obvious that the detaining authority has not at all considered the possibility of the detenu being released on bail in respect of the earlier case where he was involved in a much more serious offence. If, on the other hand, the reference by the detaining authority is considered as a reference to the murder case, namely, Crime No.346 of 2004, dated 13.09.2004, it is obvious that the detaining authority has not also considered the possibility of the detenu being released on bail in the latter case. In any event, it must be taken to be non- application of mind to relevant circumstance and the vital aspect relating to the imminent possibility of the detenu, who was admittedly in judicial custody, on being released on bail. This, in our opinion, has the effect of vitiating the order of detention.
8.Learned counsel for the petitioner has also submitted that admittedly the copy of the remand order has not been supplied to the detenu and therefore, since copy of the relied upon document was not supplied, the order of detention is vitiated. In support of such contention, the learned counsel has referred to an unreported decision of a Division Bench of this Court in H.C.P.(MD)No.11 of 2004, disposed on 01.11.2004. Since we have already found that the order of detention is vitiated, it is not necessary to dwell any further on the aforesaid aspect.
9.For the aforesaid reasons, the order of detention, dated 15.10.2004, is quashed and directed that the detenu shall be released forthwith unless his presence is required in connection with any other case.
To:
1.Secretary to Government, Prohibition and Excise Department, Secretariat, Chennai-9.
2.The District Collector and District Magistrate, Theni District at Theni.
3.The Superintendent, Central Prison, Madurai.
4.The Joint Secretary to Government Public(Law and Order) Fort St.George,Chennai-9.
5.The Public Prosecutor, Madurai Bench of Madras High Court,Madurai.