Chinna Pappa, Aged 62 Years, v. State Rep.By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.10.2018

CORAM

THE HONOURABLE Mr. JUSTICE C.T.SELVAM AND THE HONOURABLE Mr. JUSTICE M.NIRMAL KUMAR H.C.P. No.1923 of 2018 ChinnaPappa

...Petitioner

Vs 1.State of TamilNadu, rep by its Secretary of State, Prohibition & Excise Department, St. George Fort, Chennai - 600 009.

2.The District Collector & District Magistrate, Vellore, Vellore District, TamilNadu.

...Respondents

PRAYER:Habeas Corpus Petition under Article 226 of the Constriction of India, to issue a Writ of Habeas Corpus, calling for the records relating to the detention order dated 15.07.2018 made in detention order Memo NO. C3/D.O.No. 52/2018 passed by the 2nd respondent herein to quash the same and direct the respondents to produce the body or person of the petitioner's son Thirupathi, Son of Sivalingam aged about 30 years branded as Bootlegger and now confined in Central Prison, Vellore, Vellore District, before this Hon'ble Court and set him at liberty forthwith.

For Petitioner : Mr.Paul Gnanamuthu 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 C3/D.O. No.52/2018, dated 15.07.2018, whereby the detenu, by name, Thirupathi, son of Sivalingam, aged about 30 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 "BOOTLEGGER".

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

Cr.No. & Police Station Offences 1.

Cr. No.291/2017 Tirupathur Taluk Police Station U/s 4 (1) a TNP Act 2.

Cr. No.89 of 2018 Tirupathur Taluk Police Station U/s 4 (1) g TNP Act 3.

Cr. No.194 of 2018 Tirupathur Taluk Police Station U/s 4 (1) aa TNP Act 1937 The ground case has been registered against the detenu in Cr.No.195 of 2018 on the file of Inspector of Police, Tirupathur Taluk Police Station for offences u/s 4(1)i, 4(1)aaa, 4(1-A)ii TNP Act, 1937, r/w 328 IPC. The detention order has been passed by second respondent in C3/D.O. No.52/2018.

3. 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.

4. Learned counsel appearing for the petitioner submitted that the detenu was arrested in the ground case in Cr.No.195/2018 on 03.06.2018; whereas the detention order was passed on 15.07.2018, i.e. Nearly after a lapse of 42 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).

5. Per contra, the learned Additional Public Prosecutor would submit that the order of detention has been passed on cogent and sufficient materials and the same cannot be interfered with at the instance of the petitioner. Therefore, he submits that the Habeas Corpus Petition does not merit any consideration and the same is liable to be dismissed.

6. We have heard the learned counsel for both sides with regard to the facts.

7. We took pains to place on record our displeasure. We would state that the fact of passing detention orders, is very much after the date of arrest and that the period of detention suffered by the detenu is extended at the instance of the detaining authority. For instance, if a Habeas Corpus Petition challenging an order of detention in the normal course, comes up within 4/5 months of the date of filing thereof, this Court would be inclined to allow the same. The actual period of detention suffered adds up to the period post detention as also the period pre-detention. Such is not a desirable position. Given such reasoning, this Court is inclined to take up Habeas Corpus Petition for final disposal, challenging detention orders, where the same have been passed one month after the date of arrest i.e., where the live link between the need to pass the detention order and the passing thereof, is snapped.

8. A perusal of the grounds of detention as well as the detention order passed by the detaining authority would show that the Detention Order was passed on 15.07.2018. Further, the detenu was arrested in the ground case as early as on 03.06.2018. This shows an inordinate delay of nearly 42 days in passing the detention order. There is no explanation forthcoming on the side of the respondents for this inordinate delay in passing the detention order. 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......."

9. 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.

10. Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.

Sd/- Assistant Registrar(CS V) //True Copy// Sub Assistant Registrar vsi-2 To 1.The Secretary of State, Prohibition & Excise Department, St.George Fort, Chennai - 600 009.

2.The District Collector & District Magistrate, Vellore, Vellore District, Tamil Nadu.

3.

The Superintendent of Prison, Central Prison, Vellore.

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

5.The Public Prosecutor High Court, Madras.

H.C.P. No. 1923 of 2018 svn(co) nr 10/12/2018