Anoop Nair @ Sarathkumar v. The State Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.10.2018
CORAM
THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR H.C.P.No.2096 of 2018 Anoop Nair @ Sarathkumar S/o.K.K.Sasi ...
Petitioner vs.
1.The State of Tamil Nadu Rep. by its Secretary to Government Department of Prohibition and Excise (Home) Fort St. George Chennai - 600 009 2.The Commissioner of Police Chennai City Police, Greater Chennai Commissioner Office, Vepery Chennai - 600 007 ...
Respondents Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus to call for the records in No.623/BCDFGISSSV/2018 dated 01.08.2018 on the file of second respondent herein and set aside the same as illegal and produce the detenu Anoop Nair @ Sarathkumar, Son of K.K.Sasi, aged about 28 years, who is confined at Central Prison, Puzhal, Chennai before this Court and set him at liberty.
For Petitioner : Mr.Ilayaraja Kandasamy 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] Petitioner is the detenu, who has been branded as a 'Goonda' under the Tamil Nadu Act 14 of 1982 and detained under order of second respondent passed in Memo No.623/BCDFGISSSV/2018 dated 01.08.2018.
2. The detenu came to adverse notice in Crime No.229 of 2018 on the file of Central Crime Branch for offences u/s.420, 34 IPC r/w 24 and 10 of Emigration Act, 1983. The alleged ground case has been registered against the detenu in Crime
No.278 of 2018 on the file of Central Crime Branch for offences u/s.406, 420 IPC and 24 and 10 of Emigration Act, 1983 r/w 34 IPC. Aggrieved by the order of detention, the present writ petition has been filed.
3. Learned counsel for petitioner submits that the detenu has been arrested on 19.06.2018 in Crime No.229 of 2018 and thereafter, he has been formally arrested in other case on 05.07.2018. The order of detention has been passed so many days after the initial arrest. The order of detention came to be passed on 01.08.2018. A period of more than one and a half month had lapsed between the date of arrest of the detenu and the sponsoring authority recommending his detention. Such long delay stands not explained and hence, the order of detention is liable to be set aside following the order of Division Bench of this Court in Ramesh v. District Collector and District Magistrate, Tiruchirapalli District and another [2005 MLJ (Crl.) 752].
4. We have heard learned Additional Public Prosecutor on the above submissions.
5. 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.
6. In the decision relied upon by learned counsel for petitioner in Ramesh's case (cited supra), 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.......".'
Following the principle enunciated in the above said order of the Division Bench of this Court, the Habeas Corpus Petition is allowed and the impugned detention order passed by the second respondent, detaining the detenu Anoop Nair @ Sarathkumar S/o.K.K.Sasi in No.623/BCDFGISSSV/2018 dated 01.08.2018 is quashed. The above named detenu is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case.
Sd/- Deputy Registrar(CS) //True Copy// Sub Assistant Registrar gm To 1.The Secretary to Government Department of Prohibition and Excise (Home) Fort St. George, Chennai - 600 009.
2.The Commissioner of Police Chennai City Police, Greater Chennai Commissioner Office, Vepery Chennai - 600 007.
3.The Public Prosecutor, High Court, Madras.
4.The Superintendent of Central Prison, Puzhal, Chennai.
5. The Joint Secretary to Government Public (Law & order) Fort St. George, Chennai-9.
H.C.P.No.2096 of 2018 KR(CO) EU(27/11/2018)