K.Senthil Kumar @ Thvakkalai v. The Principal Secretary To

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.06.2018

CORAM:

THE HONOURABLE Mr. JUSTICE C.T.SELVAM and THE HONOURABLE Mr. JUSTICE A.M.BASHEER AHAMED H.C.P.(MD)No.384 of 2018 K.Senthil Kumar @ Thavakkalai Kumar ... Petitioner Vs.

1. The Principal Secretary to Government, Home Prohibition and Excise Department, State of Tamil Nadu, Secretariat, Fort St. George, Chennai - 600 009.

2. The District Collector and District Magistrate, O/o.The District Collector and District Magistrate, Nagapattinam District, Nagapattinam.

3. The Superintendent of Prison, Tiruchirappalli Central Prison, Tiruchirappalli.

... Respondents PRAYER: The petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, to call for the entire records with the detention order passed by the respondent No.2 in C.O.C.No.86/2017 dated 12.12.2017 and quash the same as illegal and consequently directing the respondents to produce the detenu by name Senthilkumar @ Thavakkalai Senthilkumar, S/o.Kaliyamoorthy, male, aged about 33 years, now detained in Central Prison, Tiruchirappalli, before this Court and set him at liberty.

For Petitioner : Mr.N.V.Nagenthran For Respondents : Mr.V.Neelakandan, APP

ORDER

(Order of the Court was made by C.T.SELVAM,J.) Petitioner is the detenu - Senthilkumar @ Thavakkalai Senthilkumar, S/o.Kaliyamoorthy. The detenu has been detained by the second respondent by his order in C.O.C.No.86/2017 dated

12.12.2017, holding him to be a "Goonda", as contemplated under Section of 2(f) of the Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition. 2.We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondents. We have also perused the records produced by the Detaining Authority. 3.Though several grounds have been raised in the Habeas Corpus Petition, learned counsel for the petitioner would mainly focus his arguments on the ground that the detenu, in this case, was arrested on 25.10.2017; whereas the Detention order was passed on 12.12.2017. This inordinate delay in passing of detention order would vitiate the same.

In support of his contention, learned counsel for 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. 4.We have also heard the submissions made by the learned Additional Public Prosecutor on the above said contentions raised on behalf of the petitioner.

5.Further, 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 12.12.2017; but from the grounds of detention, it is seen that the detenu was arrested in the ground case as early as on 25.10.2017. This shows an inordinate delay in passing the detention order. Thus, on this sole ground alone, the impugned order of detention is liable to be set aside. 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......."

6.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 live link between arrest and need for passing the order of detention has snapped and the detention order is liable to be set aside. 7.In the result, the Detention Order, passed by the second respondent, in his proceedings in C.O.C.No.86/2017 dated 12.12.2017, is quashed. The detenu, namely, Senthilkumar @ Thavakkalai Senthil Kumar, son of Kaliyamoorthy, is ordered to be set at liberty forthwith, if his detention is not required in connection with any other case.

8.In the upshot, we allow the Habeas Corpus Petition. Sd/- Assistant Registrar (CS-III) /True Copy/ Sub Assistant Registrar (CS-IV) To

1. The Principal Secretary to Government, Home Prohibition and Excise Department, State of Tamil Nadu, Secretariat, Fort St. George, Chennai - 600 009.

2. The District Collector and District Magistrate, O/o.The District Collector and District Magistrate, Nagapattinam District, Nagapattinam.

3. The Superintendent of Prison, Tiruchirappalli Central Prison, Tiruchirappalli.

4. The Joint Secretary to Government, Public (Law and Order), Fort.St.George, Chennai - 9.

5. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+ 1 CC TO Mr.N.V.NAGENTHRAN, ADVOCATE IN SR No. 68029 NBJ TE/RP/SAR-4 : 29/08/2018 : 4P/7C H.C.P.(MD)No.384 of 2018 11.06.2018