S.Nathiya, (F/M-29), v. The Principal Secretary

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 22.12.2017

CORAM:

THE HONOURABLE MR.JUSTICE RAJIV SHAKDHER And THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.1913 of 2017 S.Nathiya ... Petitioner -vs1.The Principal Secretary to Government, Home, Prohibition and Excise (XVI) Department, Secretariat, Chennai - 600 009.

2.The Commissioner of Police, O/o.The Commissioner of Police, Salem City.

... Respondents Prayer:

Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the entire records connected with the detention order in C.M.P.No.82/Goonda/Salem City dated on 06.10.2017 on the file of the Respondent no.2 and quash the same and direct the respondents to produce the body and person of the petitioner's husband one named Kattukara Saravanan @ Saravanan, S/o.Selvam aged about 30 years now confined at Central Prison, Salem, before this Hon'ble Court and set him at liberty forthwith.

For Petitioner :

Mr.M.Mohamed Saifulla For Respondents :

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

O R D E R

[Order of the Court was made by RAJIV SHAKDHER, J.] 1.This is a petition, whereby, the challenge is laid to the detention order, dated 06.10.2017.

2.A perusal of the impugned detention order, would show, one adverse case, has come to the notice of the detaining authority. This case is numbered as Crime No.363 of 2017. In so far as this case is concerned, the detenu, has been booked, under Section 302 of the I.P.C. The record shows that the detenu, along with the co-accused, surrendered in Crime No.363 of 2017 on 25.07.2017.

2.1.This apart, in so far as the subject case is concerned, the same has been registered as Crime No.366 of 2017. In respect of this case, the detenu, has been booked under Sections 341, 392, 397 and 506(ii) of the I.P.C.

2.2.A Perusal of the impugned order would show that even according to the detaining authority, the bail petitions, filed by the detenu, in Crime No.363 of 2017 and Crime No.366 of 2017, were dismissed, by the learned Principal Sessions Judge, Salem, on even date, i.e., 15.09.2017.

2.3.The detaining authority, however, reached a conclusion, that the detenu may be released on bail, by taking recourse to the fact, that in a similar case of 2014, bail had been granted.

3.We have heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor. We have also perused the records. 4.According to us, the detention order, cannot be sustained, for the following reasons:

(i)First, even though, the detenu had surrendered on 25.07.2017, the detention order was passed only on 06.10.2017. Notice in this petition was issued on 20.10.2017. Despite, opportunity having been granted, no counter affidavit has been filed, by the State. Resultantly, the delay, in passing the impugned detention order, remains unexplained. (ii) Second, even though the detaining authority, observed that bail petitions filed by the detenu in Crime No.363 of 2017 and Crime No.366 of 2017 were dismissed, it went on to conclude that there was a real possibility of the detenu being released for custody, based on the ground that in 2014, in a similar case, bail had been granted. According to us, this conclusion was clearly flawed. The detaining authority, failed to apply its mind, to material and relevant facts.

5.Thus for the foregoing reasons, as indicated above, we are inclined to quash the impugned order. It is directed accordingly. 6.In the result, the Habeas Corpus Petition is allowed and the order of detention in C.M.P.No.82/Goonda/Salem City, dated 06.10.2017, passed by the second respondent is set aside. The detenu, namely, Kattukara Saravanan, alias, Saravanan, son of Selvam, aged about 33 years, is directed to be released forthwith, unless his detention is required, in connection with any other 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.

[R.S.A.,J.] [N.S.K.,J.] 22.12.2017 Speaking Order/ Non Speaking Order Index : Yes / No Internet : Yes / No pri Note to office:

(i)Issue copy by today itself.

(ii)This order will be communicated to the concerned Jail Superintendent by the Registrar General of this Court via Fax.

To 1.The Principal Secretary to Government, Home, Prohibition and Excise (XVI) Department, Secretariat, Chennai - 600 009.

2.The Commissioner of Police, O/o.The Commissioner of Police, Salem City.

3.The Superintendent, Central Prison, Salem.

4.The Additional Public Prosecutor, Madras High Court, Madras.

RAJIV SHAKDHER, J.

And N.SATHISH KUMAR, J.

pri H.C.P.No.1913 of 2017 22.12.2017