Tmt.Mainavathi, Aged 56 Years, v. The Principal Secretary To

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 22.02.2018

CORAM:

THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P. No.229 of 2018 Tmt.Mainavathi ... Petitioner -vs1.The Principal Secretary to the Government, Home, Prohibition and Excise Department, Fort St George, Chennai 600 009.

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

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records relating to the order of detention No.666/BCDFGISSSV/2017 dated, 30/10/2017 passed by the 2nd respondent and to quash the same and also to direct the detenu Thiru.Chinna @ Chinraj, S/o.Elumalai, who is presently detained in the Central Prison, Puzhal, Chennai to be produced before this Hon`ble court and set at liberty.

For Petitioner :

Mr.V.Paarthiban For Respondents:

Mr.M.R.Rajentran Additional Public Prosecutor ***

ORDER

[Order of the Court by N.SATHISH KUMAR, J.] The petitioner, who is the mother of the detenu, namely, Chinna @ Chinraj, son of Elumalai, age 23 years, challenges the impugned order of detention, dated 30.10.2017 in No.666/BCDFGISSSV/2017 detaining her son as "Goonda", as contemplated under Section 2(f) of the Tamil Nadu Prevention of dangerous activities of Boot leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act

14/1982).

2. The detenu has come to adverse notice in the following case:- S.No.

Cr.No. & Police Station Offences 1.

Cr.No.386/2016 Kothavalchavadi Police Station 341, 294(b), 336, 427, 392, 397, 307, 506(ii) IPC @ 341, 294(b), 336, 427, 392, 397 and 506(ii) IPC.

The ground case has been registered against the detenu in Crime No.1847 of 2017 on the file of Inspector of Police, Kodungaiyur Police Station for offences u/s 120(b), 147, 148, 302 and 506 (ii) IPC. The detention order has been passed by Second respondent in No.666/BCDFGISSSV/2017 on 30.10.2017.

3. We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority.

4. Though several grounds have been raised in the Habeas Corpus Petition, 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.

5. Learned counsel appearing for the petitioner submitted that the detenu was arrested in the ground case in Cr.No.1847/2017 on 30.09.2017, whereas the detention order was passed on 30.10.2017, i.e. after a lapse of one month. This inordinate delay in passing of detention order would vitiate the same. In support of his contention, learned counsel for the petitioner placed reliance on the judgment of a Division Bench of this Court reported in 2005 MLJ (Crl.) 752 (Ramesh v. District Collector and District Magistrate, Tiruchirapalli District and another). Hence, on the above grounds, the detention order is liable to be set aside.

6. Further, the Grounds of Detention would reveal that one adverse case has been registered against the detenu and a ground case was registered against him in Cr.No.1847/2017 for the offences u/s.120(b), 147, 148, 302 and 506[ii] IPC. Admittedly, the detenu has not moved any bail applications in the ground case. Therefore, the likelihood of coming out on bail is very remote ; whereas the statement of the Sponsoring Authority has been taken into consideration by the Detaining Authority that the relatives of the detenu are taking steps to file bail applications in the ground case. When a bail application has

not been moved, the logical conclusion would be that there is no likelihood of coming out on bail. Therefore, we are of the view that the finding of the Detaining Authority that there is likelihood of the detenu coming out on bail, is nothing but a clear non-application of mind and the Detaining Authority has not passed the order on merits ; but passed, based on mere ipse dixit. Though the detaining authority has made reliance on similar case, in which an accused was granted bail, the facts involved in those cases are different. The principle of similarity cannot be applied mechanically. Normally, bails are granted based on the facts and circumstances of each case. Therefore, similar case plea, cannot be taken into consideration.

Hence, there is no material to substantiate that there is real possibility of the detenu coming out on bail and the said order was passed without application of mind. It is to be noted that the detenu was arrested in the ground case in Cr.No.1847/2017 on 30.09.2017, whereas the detention order was passed on 30.10.2017, i.e. after a lapse of one month. This inordinate delay in passing of detention order would vitiate the same.

"....

3. It is brought to our notice by the learned Government advocate that the analyst report was received on 06.12.2014 and the doctor has issued certificate on 07.12.2014. Even in the counter affidavit filed by the first respondent, it is stated that the sponsoring authority has submitted his affidavit only on 15.01.2015. When the sponsoring authority is in possession of the analyst report and the doctor's report even on 06.12.2014 and 07.12.2014, there is no proper explanation for submitting his affidavit till 15.01.2015 for invoking the provisions of Tamil Nadu Act 14 of 1982. Even thereafter, the impugned detention order was passed only on 27.02.2015, i.e. After five weeks of receipt of the affidavit from the sponsoring authority. Though the detaining authority has filed a counter affidavit, there is no explanation for the undue delay in passing the impugned order.

4.In this regard, learned counsel for the petitioner relied on unreported decision of this Court rendered in H.C.P. No.1149 of 1995, dated 13.12.1995. In similar circumstances, after pointing out the unexplained delay between the date of submission of the affidavit by the sponsoring authority and the detention order, the Division Bench of this Court has concluded thus:

"Such delays tend to have an affect of snapping the link between prejudicial activity and passing of preventive orders......."

7. In view of the above decision rendered by the Division Bench of this Court, this Court is of the view that the detention order is unsustainable in law on the ground of inordinate and unexplained delay in passing the detention order and the same is liable to be set aside.

8. In the result, the Habeas Corpus Petition is allowed and the order of detention in No.666/BCDFGISSSV/2017 dated 30.10.2017, passed by the second respondent is set aside. The detenu, namely, Chinna @ Chinraj, son of Elumalai, aged about 23 years, is directed to be released forthwith unless his detention is required in connection with any other case. Sd/- Assistant Registrar(CS IX) //True Copy// Sub Assistant Registrar kmi To:

1.The Principal Secretary to the Government, Home, Prohibition and Excise Department, Fort St George, Chennai 600 009.

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

3. The Superintendent Central Prison Puzhal Chennai 4.The Joint Secretary to Govt Public Law and Order Secretariat Chennai-9 5.The Public Prosecutor High Court, Madras.

H.C.P.No.229 of 2018 aa15/03/2018