Jothi v. The Principal Secretary To

IN 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.790/2015 Jothi ..

Petitioner Vs.

1.The Principal Secretary to Government State of Tamilnadu Home, Prohibition & Excise [IX] Department Secretariat, Chennai 600 009.

2.The District Magistrate and District Collector O/O.the District Magistrate and District Collector Tiruppur District.

3.The Superintendent of Prison Coimabtore Central Prison, Coimbatore.

..

Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus to call for the entire records connected with the detention order of the respondent No.2, in Cr.MP.No.06/Goonda/2015 dated 25.02.2015 and quash the same and direct the respondents to produce the detenu namely Elango @ Elangovan, son of Boothapandi, aged about 23 years, detained in Coimbatore Central Prison, before this Court and set him at liberty forthwith.

For petitioner :

Mr.R.Alagumani 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.06/Goonda/2015 dated 25.02.2015, whereby the detenu/the husband of the petitioner by name Elango @ Elangovan, son of Boothapandi, aged about 23 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.R.Alagumani, 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 detenu has been formally arrested and remanded to judicial custody in the 5th adverse case in Cr.No.280/2014 registered by Thirumangalam Police Station, Madurai District; but the said factum of the remand of the detenu in the 5th adverse case in Cr.No.280/2014 has not been reflected in the grounds of detention, more particularly in paragraph 5 of the Detention order. Further, the Detaining Authority has made a mention only about the ground case in Cr.No.19/2015 wherein the detenu has not moved any further bail application as on the date of passing of the detention order subsequent to the dismissal of the earlier bail application by the learned Judicial Magistrate, Avinashi, in Cr.MP.No.702/2015 on 16.02.2015.

It is further submitted that no materials have been furnished by the Detaining Authority that the relatives of the detenu are taking steps to bring the detenu out on bail. 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.

6.As could be evidenced from the Booklet furnished before us, the detenu was arrested by way of P.T.Warrant in the 5th adverse case in Cr.No.280/2014 registered by Thirumangalam Police Station. But the factum of remand of the detenu in the adverse case No.5, viz., in Cr.No.280/2014, has not been reflected in paragraph 5 of the Grounds of Detention and only a reference has been made in respect of the ground case wherein no further bail application was filed by the detenu as on the date of the passing of the detention order in pursuance to the dismissal of the earlier bail petition in Cr.MP.No.702/2015 on 16.02.2015 by the learned Judicial Magistrate, Avinashi. When nothing has been stated about the remand of the detenu in the said adverse case No.5, 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. 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. Sd/- Sd/- Asst.Registrar (CS IV ) /true copy/ Sub Asst. Registrar ap To 1.The Principal Secretary to Government State of Tamilnadu Home, Prohibition & Excise [IX] Department Secretariat, Chennai 600 009.

2.The District Magistrate and District Collector O/O.the District Magistrate and District Collector Tiruppur District.

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

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.790/2015 aa10/08/2015