Kamala v. The State Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 03.08.2015

CORAM

THE HONOURABLE DR.JUSTICE S.TAMILVANAN and THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.1049/2015 Kamala

...Petitioner

Vs.

1.The State of Tamil Nadu, rep. by its Secretary, Department of Home, Prohibition & Excise Fort St George, Chennai-9.

2.The Commissioner of Police, Greater Chennai, Vepery, Chennai - 600007.

...Respondents

Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus to call for the records made in No.238/BCDFGISSV/2015 dated 14.03.2015 on the file of the 2nd respondent herein and quash the same as illegal and direct the respondents to produce the detenu, Senthilkumar, Son of late Shankar, aged 31 years, now confined at Central Prison, Puzhal, Chennai, before this Court and set him at liberty.

For petitioner :

Mr.L.Uthayakumar For respondents :

Mr.M.Maharaja Additional Public Prosecutor

O R D E R

[Order of the Court was made by S.TAMILVANAN, J.] Challenge is made to the order of detention passed by the second respondent vide Proceedings in Memo No.238/BDFGISSV/2015 dated 14.03.2015, whereby the detenu, by name Senthilkumar, son of late Shankar, aged 31 years, was ordered to be detained under the provisions of Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "GOONDA". 2.As per the grounds of detention dated 14.03.2015, passed by the second respondent, the detenu came to adverse notice in the following cases:

i)Adverse Cases:

Sl No.

Name of the Police station and Crime No.

Section of law G3 Kilpauk PS Cr.No.1530/2014 379 IPC P2 Otteri PS Cr.No.1548/2014 379 IPC G2 Periyamedu PS Cr.No.181/2015 379 IPC K2 Ayanavaram PS Cr.No.123/2015 379 IPC G5 Secretariat Colony PS Cr.NO.341/2015 379 IPC (ii) Ground Case:

Sl No.

Name of the Police station and Crime No.

Section of law G5 Secretariat Colony PS Cr.No.358/2015 341, 323, 294[b], 397 & 506 [ii] IPC

3. Though many grounds have been raised in the petition, Mr.L.Uthayakumar, the learned counsel appearing for the petitioner, confines his argument only in respect of non-application of mind on the part of the detaining authority in passing the order of detention.

4.Learned counsel appearing for the petitioner submitted that the detenu has been formally arrested and remanded to judicial custody in the 1st and 2nd adverse cases in Cr.Nos.1530/2014 and 1548/2014 registered by the G3 Kilpauk Police Station and P2 Otteri Police Station respectively, but the said factum of the remand of the detenu in the 1st and 2nd adverse cases in Cr.Nos.1530/2014 and 1548/2014 has not been reflected in the grounds of detention, more particularly in paragraph 4 of the Detention order. This is indicative of the non-application of mind on the part of the Detaining Authority and hence, submitted that the detention order is vitiated and the same is liable to be quashed. 5.Per contra, the learned Additional Public Prosecutor would submit that the order of detention has been passed on cogent and sufficient materials and the same cannot be interfered with at the instance of the petitioner. Therefore, he submits that the Habeas Corpus Petition does not merit any consideration and the same is liable to be dismissed.

6.We have heard the learned counsel for both sides with regard to the facts and citation.

7.As could be evidenced from the Booklet furnished before us, the detenu was arrested by way of P.T.Warrant in the 1st and 2nd adverse cases in Cr.Nos.1530/2014 and 1548/2014 registered by G3 Kilpauk Police Station and P2 Otteri Police Station respectively. But the factum of remand of the detenu in the adverse cases No.1 and 2, viz., in Cr.Nos.1530/2014 and 1548/2014, has not been reflected in paragraph 4 of the Grounds of Detention and only a reference has been made in respect of the ground case. When nothing has been stated about the remand of the detenu in the said adverse cases No.1 and 2, it is not known whether the detenu has filed any bail application in the said adverse cases or not. If that be so, there is no imminent possibility of the detenue coming out on bail in the said adverse cases. Hence, the Detaining Authority has passed the Detention order in total non-application of mind which would vitiate the detention order.

8.It is a trite law that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of Constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Preventive detention is preventive and not punitive. When ordinary law of the land is sufficient to deal with, taking recourse to the preventive detention law is illegal.

9.In the light of the above facts and law, we have no hesitation in quashing the order of detention on the above mentioned grounds. 10.Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order passed by the second respondent is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case. Sd/- Assistant Registrar(J) //True Copy// Sub Assistant Registrar cse To 1.The Secretary, The State of Tamil Nadu, Department of Home, Prohibition & Excise Fort St George, Chennai-9.

2.The Commissioner of Police, Greater Chennai, Vepery, Chennai - 600007.

3.The Superintendent of Central Prison Puzhal, Chennai.

4. The Joint Secretary to Government, Public (Law & Order) Fort St. George, Chennai - 9.

5.The Public Prosecutor, High Court, Madras.

H.C.P.No.1049/2015 SKV (CO) PSI (18.08.2015)