Mr.Ayyanar, M/57 Years v. The Secretary To The

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 10.10.2018

CORAM

THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR H.C.P.No.1430 of 2018 Ayyanar .. Petitioner Vs.

1.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai-600 009. 2.The District Collector and District Magistrate, Coimbatore District.

.. Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, calling for the records in connection with the order of Detention passed by the 2nd respondent dated 04.05.2018 in Cr.M.P.No.8/G/2018/E1 against the son of the petitioner MARISWARAN, M/A 23 years, son of Ayyanar, who is presently detained in the Central Prison, Coimbatore and set aside the same and consequently direct the respondents to produce the detenu before this Hon`ble court and set at liberty.

For Petitioner :

Mr.A.Saranraj 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 Cr.M.P.No.8/G/2018/E1 dated 04.05.2018, whereby the detenu, by name, Mariswaran, son of Ayyanar, aged about 23 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 has come to adverse notice in the following cases:-

Sl.No .

Police Station & Crime No.

Section of Law 1.

Karamadai Police Station, Coimbatore District Crime No.76/2018 457, 380 IPC 2.

Karamadai Police Station, Coimbatore District Crime No.77/2018 379 IPC The ground case has been registered against the detenu in Cr.No.85/2018 on the file of Inspector of Police, Karamadai Police Station, for offences u/s 392 and 397 IPC. The detention order has been passed by second respondent in Cr.M.P.No.8/G/2018/E1.

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

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.85/2018 on 27.02.2018; whereas the detention order was passed on 04.05.2018, i.e. Nearly after a lapse of 35 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). Hence, on the above grounds, the detention order is liable to be set aside.

6. Further, the Grounds of Detention would reveal that two adverse cases have been registered against the detenu and a ground case was registered against him in Cr.No.85/2018 for offences u/s 392 and 397 IPC. Admittedly, the detenu has not moved any bail application in the ground case as also in the adverse cases. Therefore, the probability of release of the petitioner imminently does not arise. Hence, we are inclined to set aside the detention order. 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.85/2018 on 27.02.2018, whereas the detention order was passed on 04.05.2018, i.e. after a lapse of 35 days. This inordinate delay in passing of detention order would vitiate the same. 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......."

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 Cr.M.P.No.8/G/2018/E1 dated 04.05.2018, passed by the second respondent is set aside. The detenu, namely, Mariswaran, son of Ayyanar, 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 Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai-600 009. 2.The District Collector and District Magistrate, Coimbatore District.

3.The Superintendent, Central Prison, Coimbatore.

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

5.The Public Prosecutor High Court, Madras.

kmi(CO) sm:13.11.2018 H.C.P.No.1430 of 2018