Ganesan v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 14.03.2016

CORAM

THE HONOURABLE MR. JUSTICE M.JAICHANDREN and THE HONOURABLE MR. JUSTICE S.NAGAMUTHU H.C.P.No.2467/2015 Ganesan .. Petitioner Vs.

1.The Secretary to Government, State of Tamil Nadu Home, Prohibition & Excise Department Secretariat, Chennai.

2.The Commissioner of Police O/o.The Commissioner of Police [Goondas Section], Chennai 600008.

..Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus directing the respondents to produce the detenu, the petitioner's son Thiru Nithyanandam, son of Ganesan, aged about 31 years who was lodged in Central Prison, at Puzhal, Chennai as per detention order passed by the 2nd respondent herein in BDFGISSSV No.718/2015 dated 10.08.2015 and branded him as Goonda, before this Court and set him at liberty forthwith.

For Petitioner :

Mr.M.Murali Vinoth For Respondents :

Mr.A.N.Thambidurai,APP

ORDER

[Order of the Court was made by M.JAICHANDREN, J.] Challenge is made to the order of detention passed by the second respondent vide Proceedings in BCDFGISSSV No.718/2015 dated 10.08.2015, whereby the detenu, viz., Nithyanandam, son of the petitioner herein, aged 31 years, was ordered to be detained under the provisions of the 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.Though many grounds have been raised in the petition, Mr.M.Murali Vinoth, the learned counsel appearing for the petitioner, confines his argument only in respect of nonapplication of mind on the part of the detaining authority in passing the order of detention.

3.Learned counsel appearing for the petitioner submitted that the bail applications moved by the detenu in the six adverse cases [Cr.Nos.284/2015, 417/2015, 603/2015, 612/2015, 647/2015 and 652/2015] before the learned XIII Metropolitan Magistrate, Egmore, Chennai in Crl.MP.Nos.1142/2015, 1143/2015, 1144/2015, 1146/2015, 1150/2015 and 1148/2015, are pending and he has not moved any bail application in the ground case [Cr.No.704/2015] registered by V1 Villivakkam Police Station as on the date of passing of the detention order. But the Detaining Authority, in the Grounds of Detention, has stated that the relatives are taking steps to file bail application in the said ground case. But, the said factum has not been reflected in the Special Report of the Sponsoring Authority.

This is indicative of non-application of mind on the part of the Detaining Authority and thus, the detention order is vitiated on the above sole ground and the same is liable to be quashed. 4.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.

5.We have heard the learned counsel for both sides with regard to the facts.

6.As evidenced from the Grounds of Detention, in particular, paragraph 4, the Detaining Authority has stated that the "Sponsoring Authority has stated that the relatives of Thiru Nithiyanandam are taking action to take him on bail in V1 Villivakkam Police Station Cr.No.704/2015 by filing bail application before the appropriate Court...". But, a perusal of the Booklet, in particular, the Special Report of the Sponsoring Authority, it is evident that nothing has been stated by the Sponsoring Authority to the effect of the relatives taking steps to file bail application in the said case and no statements of the relatives have been recorded to that effect. This is indicative of total non-application of mind on the part of the Detaining Authority. Therefore, the detention order is vitiated and liable to be quashed on this ground alone. 7.It is 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.

8.In the light of the above facts and law, we have no hesitation in quashing the order of detention on the above mentioned ground.

9. 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(CS VII) //True Copy// Sub Assistant Registrar AP To 1.The Secretary to Government, Government of Tamil Nadu Home, Prohibition & Excise Department Secretariat, Chennai.

2.The Commissioner of Police of Chennai O/o.The Commissioner of Police [Goondas Section], Chennai 600 008.

3. The Superintendent, Central Prison, Puzhal, Chenani-66.

4. The Joint Secretary to Government Public (Law & order), Fort St. George, Chennai. 600 009.

5.The Public Prosecutor, High Court, Madras.

H.C.P.No.2467/2015 NM(CO) EU 30.03.16