Mrs.Sumathi v. The Secretary To Government

THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.07.2015

CORAM

THE HONOURABLE DR.JUSTICE S.TAMILVANAN and THE HONOURABLE MR.JUSTICE C.T.SELVAM H.C.P.No.366/2015 Sumathi ..

Petitioner Vs.

1.The Secretary to Government, [Home], Prohibition & Excise Department Secretariat, Chennai-600 009.

2.The District Magistrate & District Collector Ariyalur District, Ariyalur.

.. Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus to call for the records from the 2nd respondent vide proceedings in Cr.MP.No.03/2015 dated 17.01.2015 and set aside the preventive detention order and set the detenu Mr.Karthik @ Bala Karthik, son of Mr.Balu, age 29 years at liberty.

For petitioner :

Mr.S.Sugendran For respondents :

Mr.M.Maharaja, APP

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 Cr.MP.No.03/2015 dated 17.01.2015, whereby the husband of the petitioner, by name, Mr.Karthik @ Bala Karthik, son of Mr.Balu, age 29 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.Though many grounds have been raised in the petition, Mr.S.Sugendran, 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.

3.Learned counsel appearing for the petitioner submitted that the Detaining Authority has placed reliance on a similar case wherein the accused Sundarajan @ Madhumakki Sundarajan @ Sundar was released on statutory bail by the learned Judicial Magistrate, Jayankondam, in Crl.MP.No.8840/2014 on 27.08.2014 for the offences u/s.392 r/2 397 IPC, in the case in Cr.No.62/2014 on the file of Udayarpalayam Police Station, to arrive at the subjective satisfaction that there is a real possibility of the detenu coming out on bail in the ground case wherein the bail application filed in the ground case by the detenu was penidng on the file of the court concerned. But, the said similar case is not at all a similar case to the ground case of the detenu since the accused in the similar case were granted statutory bail u/s.167[2] Cr.P.C.

, while the investigation in the ground case is pending. 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. 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 and citation.

6.As could be evidenced from paragraph No.5 of the Grounds of Detention, the detenu's bail application filed in the ground case [Cr.No.389/2014] before the learned District Magistrate, Jayankondam in Crl.MP.No.13598/2014 was dismissed on 30.12.2014 and thereafter, the 2nd bail application filed in the said case before the learned District and Sessions Judge, Ariyalur in Crl.MP.No.35/2015 was pending as on the date of passing of the detention order. It is also further evidenced from the said paragraph that a reference was made to a similar case registered by the Udayarpalayam Police Station in Cr.No.62/2014, wherein bail was granted to the accused person, viz., Sundarajan @ Madhumakki Sundarajan @ Sundar, by the learned Judicial Magistrate, Jayankondam in Crl.MP.No.8840/2014 on 27.08.2014.

But a perusal of the Booklet/Paper Book placed before this Court, in particular, page Nos.89 and 90, it is seen that the said accused was granted statutory bail under Section 167[2] of Cr.P.C. Such is not the position in the case of the detenu as in the ground case, the investigation is pending. Hence, the Detaining Authority has passed the Detention order in total non-application of mind which would vitiate the detention order.

7.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.

8.In the light of the above facts and law, we have no hesitation in quashing the order of detention on the above mentioned grounds. 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. -s/dAssistant Registrar(J) True Copy Sub-Assistant Registrar AP To 1.The Secretary to Government, [Home], Prohibition & Excise Department Secretariat, Chennai-600 009.

2.The District Magistrate & District Collector Ariyalur District, Ariyalur.

3.The Superintendent of Central Prison Central Prison, Tiruchy.

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

5.The Public Prosecutor, High Court, Madras H.C.P.No.366/2015 tm(co) aa13/08/2015