Nachammal v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 30.01.2019

CORAM:

THE HONOURABLE Mr.JUSTICE C.T.SELVAM and THE HONOURABLE Mrs.JUSTICE S.RAMATHILAGAM H.C.P.No.2521 of 2018 Nachammal W/o.Subramani ... Petitioner -Vs1.The Secretary to Government, Home Prohibition & Excise Department, Secretariat, Fort St.George, Chennai - 600 009.

2.The District Collector and District Magistrate, Collector Office, Coimbatore - 641 018.

... Respondents PRAYER:

Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, to call for the entire records relating to the petitioner's son detention under Tamil Nadu Act 14 of 1982 vide detention order, dated 12.10.2018 on the file of the 2nd respondent herein made in proceedings memo Cr.M.P.No.20/G/2018/E1, quash the same as illegal and consequently direct the respondents herein to produce the petitioner's son namely Manigandan @ Thambi Manigandan S/o.Subramani, aged 39 years before this Hon'ble High Court and set the petitioner's son at liberty from detention now the petitioner's son detained at Central Prison, Coimbatore. For Petitioner :

Mr.A.Sathishkumar For Respondents :

Mr.R.Prathap Kumar Additional Public Prosecutor

ORDER

[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 Cr.M.P.No.20/G/2018/E1 dated 12.10.2018, whereby the detenu, by name, Manikandan @

Thambi Manikandan, Son of Subramani, aged about 39 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, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "GOONDA".

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

Section of Law 1.

Tiruppur District, Dharapuram Police Station, Crime No.551/2017 Under Section 454, 380 Indian Penal Code 2.

Coimbatore District, Chettipalayam Police Station Under Section 454, 457, 380 Indian Penal Code Crime No.50/2018 3.

Coimbatore District, Chettipalayam Police Station Under Section Indian Penal Code Crime No.51/2018 4.

Coimbatore District, Chettipalayam Police Station Under Section 454, 457, 380 Indian Penal Code Crime No.108/2018 The ground case has been registered against the detenu in Cr.No.180/2018 on the file of Chettipalayam Police Station, for offence u/s. 392 IPC. The detention order has been passed by second respondent in Cr.M.P.No.20/G/2018/E1.

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.180/2018 on 04.09.2018; whereas the detention order was passed on 12.10.2018, i.e. Nearly after a lapse of 37 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. 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 12.10.2018. Further, the detenu was arrested in the ground case as early as on 04.09.2018. This shows an inordinate delay of nearly 37 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......."

8. 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.

9. Accordingly, the Habeas Corpus Petition is allowed and the impugned detention order in Cr.M.P.No.20/G/2018/E1 dated 12.10.2018 is set aside. The detenu viz., Manikandan @ Thambi Manikandan, Son of Subramani, aged about 39 years, is directed to be released forthwith unless his presence is required in connection with any other case.

Sd/- Deputy Registrar //True Copy// Sub Assistant Registrar kmi/lpp To 1.The Secretary to Government, Home Prohibition & Excise Department, Secretariat, Fort St.George, Chennai - 600 009.

2.The District Collector and District Magistrate, Collector Office, Coimbatore - 641 018.

3. The Public Prosecutor, High Court, Madras.

4. The Superintendent of Central Prison, Coimbatore.

H.C.P.No.2521 of 2018 CS/04/03/2019