V. Vallithai v. The Principal Secretary To
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.01.2016
CORAM:
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR and THE HONOURABLE MR.JUSTICE V.S.RAVI H.C.P(MD)No.1430 of 2015 V.Vallithai .. Petitioner Vs.
1.The Principal Secretary to Government, Home, Prohibition and Excise Department, State of Tamil Nadu, Fort St.George, Chennai - 600 009.
2.The Commissioner of Police, Tirunelveli City, Tirunelveli District.
3.The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli District.
... 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 connected with the detention order of the second respondent in No.70/BCDFGISSSV/2015 dated 30.09.2015 and quash the same and direct the respondents to produce the detenu by name Madasamy, S/o.Vella Pandi Thevar, aged about 28 years now detained in Palayamkottai Central Prison before this Court and set him at liberty.
For Petitioner : Mr.R.Vinoth Bharathi For Respondents : Mr.A.Ramar Additional Public Prosecutor
O R D E R
[Order of the Court was made by P.R.SHIVAKUMAR] The petitioner is the mother of the detenu by name Madasamy, S/o.Vella Pandi Thevar. The detenu has been detained by the second respondent by his order in No.70/BCDFGISSSV/2015, dated 30.09.2015, holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982, taking note of the ground case in Crime No.423 of 2015 registered on the file of Melapalayam Police Station for offences
punishable under Sections 341, 294(b), 387, 307 and 506(ii) of the Indian Penal Code and the following three adverse cases: (i)Crime No.258 of 2014 registered on the file of Melapalayam Police Station for offences punishable under Sections 147, 294(b), 323, 324, 506(ii) of the Indian Penal Code r/w Sections 3(1)(r)(s), 3(ii)(va) of SC/ST (Prevention of Atrocities) Amendment Ordinance, 2014;
(ii)Crime No.595 of 2014 registered on the file of Melapalayam Police Station for offences punishable under Sections 452, 294(b), 302 and 506(ii) of the Indian Penal Code; and (iii)Crime No.181 of 2015 registered on the file of Melapalayam Police Station for offences punishable under Sections 341, 294(b), 307 and 506(ii) of the Indian Penal Code."
2. The Detaining Authority, expressing subjective satisfaction that the detenu conformed to the definition of "Goonda" and that his presence at large would be prejudicial to the maintenance of public order and also expressing subjective satisfaction that it was very likely that the detenu would come out on bail in the ground case, passed the impugned detention order. The said order is challenged in the present Habeas Corpus Petition.
3. Though a number of grounds have been raised assailing the order of detention, the learned counsel for the petitioner mainly relies on the following contention:- "There was denial of reasonable opportunity to challenge the order of detention in an effective manner by the non-supply of a copy of the Government Order extending the delegation of power to the Detaining Authority. The failure to supply a copy of the Government Order even after a representation was made in writing seeking supply of the same amounts to denial of reasonable opportunity vitiating the order of detention itself."
4. The submissions made by the learned Additional Public Prosecutor in reply to the above said contention raised by the learned counsel for the petitioner are also heard.
5. So far as the contention of the learned counsel for the petitioner regarding the non-furnishing of the Government Order is concerned, admittedly, the power delegated to the Detaining Authority was being periodically extended by fresh Government Orders passed once in three months and a copy of the latest Government Order extending the delegation, which has been referred to in the detention order, has not been furnished to the detenu. Though non-furnishing of the same initially may not be taken serious note of, when a representation is made seeking supply of a copy of the said Government Order to make an effective challenge to the detention order, such request ought to have been considered properly and the failure to do so and the mechanical rejection of such request amounts to denial of reasonable opportunity to make an effective challenge to the order of detention. On that score alone, the order of detention is liable to be set aside.
7. In the result, the Habeas Corpus Petition is allowed and this Court sets aside the order of detention dated 30.09.2015, made in No.70/BCDFGISSSV/2015, by the second respondent, the commissioner of Police, Tirunelveli City and directs the release of the detenu by name Madasamy, S/o.Vella Pandi Thevar, aged about 28 years forthwith, if his continued custody is not authorised in specific cases or by any other detention order.
Sd/- Assistant Registrar(Writ) /TRUE COPY/ Sub Assistant Registrar mj To 1.The Principal Secretary to Government, Home, Prohibition and Excise Department, State of Tamil Nadu, Fort St.George, Chennai - 600 009.
2.The Commissioner of Police, Tirunelveli City, Tirunelveli District.
3.The Superintendent of Prison, Palayamkottai Central Prison, Tirunelveli District.
4 The Joint Secretary to Government, Public(law and Order) Department, Fort St.George, Chennai- 9 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
+1 cc TO MR. R.VINOTH BHARATHI, SR.NO.1956 JAM /GSV-AN/05.02.16/3P-7C H.C.P(MD)No.1430 of 2015 11.01.2016