Kalaivani, Aged 25 Years, v. The State Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.09.2018
CORAM:
THE HONOURABLE MR.JUSTICE C.T.SELVAM and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR H.C.P. No.968 of 2018 Kalaivani ... Petitioner -Vs1.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 District Collector & District Magistrate, Kanchipuram District, Kanchipuram.
... 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 order of detention BCDFGISSSV NO.30/2018 dated, 09/05/2018 passed by the 2nd respondent and to quash the same and also to direct the detenu Parthiban @ Nondi Parthiban, S/O.Raja, aged 28 years, who is presently detained in the Central Prison, Puzhal, Chennai to be produced before this Hon`ble court and set at liberty.
For Petitioner :
Mr.Ilayaraja Kandasamy For Respondents:
Mr.M.Mohamed Riyaz Additional Public Prosecutor
ORDER
[Order of the Court by C.T.SELVAM, J.] The petitioner, who is the wife of the detenu, namely, Parthiban @ Nondi Parthiban, son of Raja, age 28 years, challenges the impugned order of detention, dated 09.05.2018 in BCDFGISSSV No.30/2018 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.591/2017 Thirukalukundram Police Station 379 IPC 2.
Cr.No.54/2018 Chithamur Police Station 392 IPC 3.
Cr.No.123/2018 Madurantakam Police Station 397 IPC r/w 149 IPC The ground case has been registered against the detenu in Crime No.149/2018 on the file of Inspector of Police, Madurantakam Police Station for offences u/s 294(b), 307, 506(ii) IPC. The detention order has been passed by Second respondent in BCDFGISSSV No.30/2018 on 09.05.2018.
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.149/2018 on 08.04.2018, whereas the detention order was passed on 09.05.2018, i.e. after a lapse of 31 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 3 adverse cases have been registered against the detenu and a ground case was registered against him in Cr.No.149/2018 for the offences u/s.294(b), 307, 506(ii) IPC. Admittedly, the detenu has moved bail application in the ground case and the same is
pending before the Principal District and Sessions Court, Chengalpattu in Crl.M.P.No.1845/2018.
Therefore, the probability of release of the petitioner imminently does not arise. Hence, we are inclined to set aside the detention order. 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.149/2018 on 08.04.2018, whereas the detention order was passed on 09.05.2018, i.e. after a lapse of 31 days. This inordinate delay in passing of detention order would vitiate the same. 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......."
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 BCDFGISSSV No.30/2018 dated 09.05.2018, passed by the second respondent is set aside. The detenu, namely, Parthiban @ Nondi Parthiban, son of Raja, aged about 28 years, is directed to be released forthwith unless his detention is required in connection with any other case. Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar kmi To:
1.The Secretary to Government, Department of Prohibition and Excise (Home), Fort St George, Chennai 600 009.
2.The District Collector & District Magistrate, Kanchipuram District, Kanchipuram.
3.The Joint Secretary Public (Law and order) Department, Secretariat, Chennai - 600 009.
4.The Superintendent, Central Prison, Puzhal, Chennai-600 066.
(In duplicate for Communication to detenue)
5.The Public Prosecutor High Court, Madras.
H.C.P.No.968 of 2018 jp(co) nr 16/10/2018