M.Karpagavalli, Aged 27 Years v. State Of Tamil Nadu Rep. By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 08.12.2017 Coram THE HON'BLE MR.JUSTICE RAJIV SHAKDHER & THE HON'BLE MR.JUSTICE N.SATHISH KUMAR H.C.P.No.2073 of 2017 M.Karpagavalli ... Petitioner Vs.

1.State of Tamil Nadu Rep. By Secretary to Government, Prohibition and Excise Department Fort St. George, Chennai - 600 009.

2.The Commissioner of Police Greater Chennai Vepery Chennai 600 007.

.. 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 petitioner's husband detention made in BCDFGISSSV No.427/2017 dated 17.07.2017 passed by the Commissioner the second respondent herein and set aside the same and direct the respondents to produce the detenu before this Court Mani @ Manikandan @ Naai Mani, son of Elumalai, aged 29 years now confined in Central Prison, Puzhal, Chennai set him liberty. For Petitioner : Mr.S.Mohanraj For Respondents : Mr.V.M.R.Rajentran,

Addl. Public Prosecutor.

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 17.07.2017.

2. A perusal of the detention order would show that qua the detenu three (3) adverse cases have been noted. These being : Crime No.761 of 2016; Crime No.867 of 2017; and 1572 of 2017.

3. Insofar as the subject case is concerned, it is registered as : Crime No.2039 of 2017. In the subject case, the detenu has been booked under Sections 392 r/w 397 of the IPC.

4. The record also shows that the detenu was arrested on 29.06.2017.

5. We have heard the learned counsel for the petitioner as well as the learned Additional Public Prosecutor. We have also perused the records. 5.1. According to us, the impugned order cannot be sustained for the following reasons:

(i) First, even though the detentu was arrested on 29.06.2017, the impugned detention order was passed, after much delay, i.e., on 17.07.2017. Notice in this petition was issued on 08.11.2017, despite which, no counter affidavit has been filed by the State. Resultantly, the delay in passing the impugned detention order remains unexplained. (ii) Second, even according to the Detaining Authority, in the subject case i.e., Crime No.2039 of 2017, the detenu had moved for bail twice. The first bail application was dismissed; while, the second bail application was pending, on the date when the impugned order was passed. Furthermore, according to the Detaining Authority, in the adverse case i.e, Crime No.867 of 2017, bail was granted by the concerned Court.

The Detaining Authority, while, coming to the conclusion that there was a likelihood of the detenu being enlarged on bail, took into account the fact that in similar cases bail was granted. According to us, this conclusion is erroneous. Clearly, insofar as the subject case is concerned, i.e., Crime No.2039 of 2017, bail petition was pending, on the date when the impugned order was passed. We may also note that insofar as the adverse case i.e., Crime No.1572 of 2017 is concerned, the Detaining Authority has made no reference as to whether or not, any bail petition was filed and if so, what was the result thereof. Therefore, according to us, there is a total application of mind by the Detaining Authority.

6. Thus for the foregoing reasons, as indicated above, we are inclined to quash the impugned order. It is directed accordingly.

7. In the result, the Habeas Corpus Petition is allowed and the order of detention in BCDFGISSSV No.427/2017 dated 17.07.2017, passed by the second respondent is set aside. The detenu, namely, Mani @ Manikandan @ Naai Mani S/o.Elumalai, male, aged about 29 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. (R.S.A., J.) (N.S.K., J.) 08.12.2017 Index : yes/no vsm Note: Issue order copy today

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

2.The Commissioner of Police Greater Chennai Vepery Chennai 600 007.

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

4.The Superintendent, Central Prison, Puzhal, Chennai.

[In duplicate for communication to the detenu] 5.The Public Prosecutor, Madras High Court, Chennai.

RAJIV SHAKDHER, J.

and N.SATHISH KUMAR, J.

vsm H.C.P.No.2073 of 2017 08.12.2017