T.Kannammal, v. The State Of Tamil Nadu,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.10.2018

CORAM

THE HONOURABLE Mr. JUSTICE C.T.SELVAM AND THE HONOURABLE Mr. JUSTICE M.NIRMAL KUMAR H.C.P. No. 1312 of 2018 T. Kannammal

...Petitioner

Vs 1.The State of Tamil nadu, Rep. by its Secretary to Government, Department of Home Prohibition and Excise Department, Fort. St. George, Chennai - 9.

2. The District Collector and District Magistrate, Cuddalore District at Cuddalore.

3. The Inspector of Police, Viruthachalam Police Station, Viruthachalam, Cuddalore District.

4. The Superintendent of Central Prison, Cuddalore - 4.

... Respondents PRAYER:Habeas Corpus Petition under Article 226 of the Constriction of India, to issue a Writ or Order or Director or writ in the nature of the Writ of Habeas Corpus, to produce the body of the petitioner husband by name A. Thirumalai @ Gopal, S/o. Athangarai, No.3/A, Keezha Street, Kakanallur, Ambai Post, V.K.Puram, Tirunelveli District, now at Central Prison, Cuddalore, Cuddalore - 4 as the Detenue under Act 14 of 1982 before this Hon'ble Court and set him at liberty forthwith, by calling for the records pertaining to the detention order made in No.C3/D.O./07/2018, dated 16.02.2018 on the file of the 2nd respondent, as confirmed by the 1st respondent to quash the same.

For Petitioner : Mr.V. Ramana Reddy For Respondents: Mr.M.Mohamed Riyaz Additional Public Prosecutor

O R D E R

[Order of the Court was made by C.T.SELVAM, J.] Challenge is made to the order of detention passed by the second respondent vide Proceedings in C3/D.O./07/2018, dated 16.02.2018, whereby the detenu, by name, Thirumalai @ Gopal, Son of Athangarai, aged about 37 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, Slumgrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "GOONDA".

2. The detenu came to adverse notice in the following cases:- Sl.No .

Police Station and Crime No.

Sections of Law 1.

Vridhachalam Police Station Crime No.513 of 2017 379 IPC Vridhachalam Police Station Crime No.524 of 2017 379 IPC Vridhachalam Police Station Crime No.748 of 2017 379 IPC Mangalampettai Police Station Crime No.591 of 2017 379 IPC

3. The ground case has been registered against the detenu in Cr.No.855/2017 on the file of Inspector of Police, Vridhachalam Police Station for offences u/s 392, 397 IPC. The detention order has been passed by Second respondent in C3/D.O./07/2018.

4. Though many grounds have been raised in the petition, 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.

5. Learned counsel appearing for the petitioner submitted that the detenu was arrested in the ground case in Cr.No.855/2017 on 18.12.2017; whereas the detention order was passed on 16.02.2018, i.e. Nearly after a lapse of 59 days. 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).

6. 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.

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

8. A perusal of the grounds of detention as well as the detention order passed by the detaining authority would show that the Detention Order was passed on 16.02.2018. Further, the detenu was arrested in the ground case as early as on 18.12.2017. This shows an inordinate delay of nearly 59 days in passing the detention order. There is no explanation forthcoming on the side of the respondents for this inordinate delay in passing the detention order. Learned counsel for the petitioner has rightly placed reliance on the decision in Ramesh's case (cited supra) wherein this Court has held as follows:

"....

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......."

9. 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.

10. Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order 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-Ix) //True Copy// Sub Assistant Registrar vsi2 To 1.The Secretary to Government, Department of Home Prohibition and Excise Department, Fort. St. George, Chennai - 9.

2. The District Collector and District Magistrate, Cuddalore District at Cuddalore.

3. The Inspector of Police, Viruthachalam Police Station, Viruthachalam, Cuddalore District.

4.The Superintendent of Prison, Central Prison, Cuddalore - 4.

5.The Joint Secretary, Public (Law and order) Department, Secretariat, Chennai - 600 009.

6.The Public Prosecutor High Court, Madras.

+ 1 cc to M/s. V. Ramana Reddy, Advocate Sr.73969 H.C.P. No. 1312 of 2018 EU(12/12/2018