K.Shanmugam (M/62) v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 07.12.2017 Coram THE HON'BLE MR.JUSTICE RAJIV SHAKDHER & THE HON'BLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.1739 of 2017 K.Shanmugam ... Petitioner Vs.

1.The Secretary to Government, Government of India, Ministry of Home Affairs, (Department of Internal Security), North Block, New Delhi - 110 001.

2.The Secretary to Lieutenant Governor, Rajnivas, 3.The District Magistrate, I Floor, Vazhadhavoor Road, Kavundanpalayam, Puducherry - 600 009.

... 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 in No.14/DM/RO/D2/PPASAA/2017 on the file of the 3rd respondent dated 09.08.2017 quash the same and direct the respondents to produce the corpus of the detenu Sathishkumar, son of Kuppusamy, who is kept in Central Prison, Kalapet, Puducherry before this Court and set him at liberty. For Petitioner : Mr.V.Elangovan For Respondents : Mr.C.Arockiam, CGSC for R1 Mr.Bharatha Chakravarthy, Public Prosecutor (P) for R2 & R3

O R D E R

(Order of the Court was made by RAJIV SHAKDHER, J) 1.This is a petition, which seeks to challenge the detention order dated 09.08.2017.

2.A perusal of the impugned order would show that two (2) adverse cases have been noted against the detenu. These being : Crime No.374 of 2006; and Crime No.32 of 2015. 2.1.Insofar as Crime No.374 of 2006 is concerned, the detenu has been booked under the following Sections: 420, 458, 471, 414, 202 r/w. Section 34 of the IPC. Insofar as Crime No.32 of 2015 is concerned, the detenu has been booked under Section 323 r/w 34 of the IPC.

3.As far as, the subject case is concerned, the said case is registered as Crime No.101 of 2017. In respect of this case, the detenu has been booked under the following Sections: 420, 468, 471, 120(B), 427, 448, 324, 395 294(b), 506(ii) of the IPC r/w 149 of the IPC.

4.A perusal of the impugned order would show that the detenu was arrested on 22.06.2017. Furthermore, the impugned order would show that while the Detaining Authority notes that the detenu had applied for bail (Crl.M.P.No.1591 of 2017), the status of the bail petition is not indicated. 5.Counsel for the petitioner says that false cases have been foisted on the detenu. The allegation in Crime No.374 of 2006 and Crime No.101 of 2017 essentially veers around forgery and fabrication of documents by the detenu. Insofar as, Crime No.32 of 2015 is concerned, according to the learned counsel, it is a case where detenu is alleged to have voluntarily caused in concert with other persons hurt in furtherance of a common intention.

5.1.Furthermore, the counsel submits that the copy of the bail petition, i.e., Crl.M.P.No.1591 of 2017, said to have been filed by the detenu, was not furnished to him. It is also his contention that the detenu has been in custody for nearly five

(5) months. Learned counsel emphasises the fact that, even though, the first case was filed against the detenu in 2006, the said case has not reached culmination to date. 6.The learned Public Prosecutor (Puducherry), on the other hand, relies upon the impugned order and the record to resist the petition.

7.We have heard the learned counsel for the petitioner as well as the learned Public Prosecutor (Puducherry). We have also perused the record. According to us, the impugned order cannot be sustained for the following reasons: (i)First, the detenu was arrested on 22.06.2017, while the impugned order was passed on 09.08.2017. Notice in the petition was issued on 15.09.2017. No counter affidavit has been filed by the State to date. Resultantly, the delay in passing the impugned order remains unexplained.

(ii)Second, the Detaining Authority, in our view, has erroneously come to the conclusion that the detenu is likely to be enlarged on bail, when the status of the bail petition filed, is not, adverted to in the impugned order. Therefore, the basis on which the Detaining Authority has come to the conclusion is not known to us.

8.Thus, as indicated above, we are inclined to quash the impugned order. It is directed accordingly.

9.In the result, the Habeas Corpus Petition is allowed and the order of detention in No.14/DM/RO/D2/PPASAA/2017, dated 09.08.2017, passed by the third respondent is set aside. The detenu, namely, Sathiskumar, son of Kuppusamy, male, aged about 51 years, is directed to be released forthwith unless his detention is required in connection with another case. Given the nature of the case, this order will be communicated to the concerned Jail Superintendent by the Registrar General of this Court via Fax.

Sd/- Assistant Registrar(CS-III) //True Copy// Sub Assistant Registrar pam/vsm To 1.The Secretary to Government, Government of India, Ministry of Home Affairs, (Department of Internal Security), North Block, New Delhi - 110 001.

2.The Secretary to Lieutenant Governor, Rajnivas, 3.The District Magistrate, I Floor, Vazhadhavoor Road, Kavundanpalayam, Puducherry - 600 009.

4.The Chief Superintendent of Central Prison, Kalapet, Puducherry.

5.The Public Prosecutor, +1cc to Mr.S.DORAISAMY, Advocate, S.R.No. 87151/12 H.C.P.No.1739 of 2017 CNR(CO) TR(07/12/2017)