Thangapriya, F/A.25 Years v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 01.03.2018

CORAM:

THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR H.C.P. No.2377 of 2017 Thangapriya ... Petitioner/ wife of the Detenue -vs1.The Secretary to Government, Home, Prohibition and Excise Department, Fort St George, Chennai 600 009.

2.The District Magistrate and District Collector, Tiruppur District, Tiruppur.

... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, to call for the records relating to the order of detention CR.M.P.NO.11/GOONDA/2017 dated, 28/11/2017 passed by the 2nd respondent and to quash the same and also to direct the detenu Thiru.Suresh Alias Joot Suresh, Son of Sivaperumal , who is presently detained in the Central Prison, Coimbatore to be produced before this Hon'ble court and set at liberty.

For Petitioner :

Mr.W.Camyles Gandhi For Respondents:

Mr.R.Prathap Kumar Additional Public Prosecutor ***

ORDER

[Order of the Court by N.SATHISH KUMAR, J.] The petitioner, who is the wife of the detenu, namely, Suresh alias Joot Suresh, son of Sivaperumal, age 27 years, challenges the impugned order of detention, dated 28.11.2017 in Cr.M.P.No.11/Goonda/2017 detaining her husband as "Goonda", as contemplated under Section 2(f) of the Tamil Nadu Prevention of dangerous activities of Boot leggers, Drug Offenders, Forest

Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14/1982).

2. The detenu has come to adverse notice in the following case:- S.No.

Cr.No. & Police Station Offences 1.

Cr.No.33/2015 Palayankottai Police Station 379 IPC.

2.

Cr.No.383/2017 Udumalaipettai Police Station, Tiruppur District.

394 IPC altered into Sections 451, 392 r/w 397 IPC The ground case has been registered against the detenu in Crime No.517 of 2017 on the file of Udumalaipettai Police Station for offences u/s 397 IPC. The detention order has been passed by Second respondent in Cr.M.P.No.11/Goonda/2017 on 28.11.2017.

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

4. Though several grounds have been raised in the Habeas Corpus Petition, the learned counsel appearing for the petitioner, confines his argument only in respect of nonapplication 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.517/2017 on 15.10.2017, whereas the detention order was passed on 28.11.2017, i.e. after a lapse of 43 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.517/2017 for the offence u/s.397 IPC. Admittedly, the detenu has not moved any bail applications in the adverse cases. Therefore, the

likelihood of coming out on bail is very remote ; whereas the statement of the Sponsoring Authority has been taken into consideration by the Detaining Authority that the relatives of the detenu are taking steps to file bail applications in the ground case. When a bail application has not been moved, the logical conclusion would be that there is no likelihood of coming out on bail. Therefore, we are of the view that the finding of the Detaining Authority that there is likelihood of the detenu coming out on bail, is nothing but a clear nonapplication of mind and the Detaining Authority has not passed the order on merits ; but passed, based on mere ipse dixit. 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.517/2017 on 15.10.2017, whereas the detention order was passed on 28.11.2017, i.e. after a lapse of 43 days. This inordinate delay in passing of detention order would vitiate the same.

"....

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.11/Goonda/2017 dated 28.11.2017, passed by the second respondent is set aside. The detenu, namely, Suresh alias Joot Suresh, son of Sivaperumal, aged about 27 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 Principal Secretary to the Government, Home, Prohibition and Excise Department, Fort St George, Chennai 600 009.

2.The District Magistrate and District Collector, Tiruppur District, Tiruppur.

3. The Superintendent, Central Prison, Coimbatore

4. The Joint Secretary to Government, Public (law & Order), fort saint george, chennai 9 5.The Public Prosecutor High Court, Madras.

H.C.P.No.2377 of 2017 GJ (CO) TR(23/03/2018)