Ponnaiyappan, v. The District Magistrate And

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04.12.2017

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBBIAH AND THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA H.C.P.(MD)No.1128 of 2017 Ponnaiyappan : Petitioner Vs.

1.State represented by the District Magistrate and District Collector Virudhunagar, Virudhunagar District 2.The Principal Secretary to Government, Home, Prohibition & Excise Department, Secretariat Chennai - 600 009.

3.The State represented by Superintendent of Prison, Central Prison, Madurai Madurai District.

: Respondents PRAYER: Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Habeas Corpus, to call for the records from the first respondent in Cr.M.P.No.23/2017 dated 08.07.2017 by setting aside the said order of detention passed by the first respondent and setting the detenu Atheeswaran, aged 35 years, S/o.Ponnaiyappan at Liberty, now detained in the Central Prison, Madurai.

For Petitioner : Mr.V.Kathirvelu, senior counsel for Mr.K.Prabhu For Respondents : Mr.C.Ramesh Additional Public Prosecutor

ORDER

[Order of the Court was made by R.SUBBIAH, J] The petitioner is the father of the detenu viz.Atheeswaran, S/o.Ponnaiyappan, aged about 35 years. The detenu has been detained, as per the order of the first respondent, dated 08.07.2017, under Section 2(f) of the Tamil Nadu Act 14 of 1982, branding him as "Goonda". Challenging the same, he has come up with this Habeas Corpus Petition.

2. 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 carefully. 3.The main submission of the learned counsel for the petitioner is that the affidavit filed by the sponsoring authority was attested by the detaining authority himself prior to the date of passing the detention order. In this regard, drawing the attention of this Court to the affidavit submitted by the Sponsoring Authority to the Detaining Authority, the learned counsel for the petitioner demonstrated that the Detaining Authority attested the affidavit filed by the sponsoring authority on 07.07.2017 and passed the detention order on 08.07.2017. The learned counsel for the petitioner further submitted that the attestation made by the Detaining Authority in the affidavit filed by the Sponsoring Authority would show the predetermination of mind on the part of the detaining authority in passing the order of detention. Hence, the detention order is liable to be set aside.

4. We have heard the learned Additional Public Prosecutor appearing for the State and perused the records carefully.

5. The issue involved in this Habeas Corpus Petition has already been dealt with, elaborately, by this Court in H.C.P.(MD) No.857 of 2016, dated 24.01.2017, [Muthukumar @ Vellaian, Vs. The Secretary to Government, Home Prohibition and Excise Department, Secretariat, Chennai - 600 009], wherein this Court, after having considered various Judgments of this Court as well as the Hon'ble Supreme Court, in Paragraph No.11, has held as follows:- "11.Of-course, it is true that the detaining authority is obligated to consider the materials placed before it independently and then to pass order on merits, without influencing the contents set out in the affidavit. However, the detaining authority cannot play a dual role, i.e.

, in one role he, being as a higher officer, affirms the necessity of the action to be taken and in another role, he, being the detaining authority, passes an order of detention. If the affidavit of the sponsoring authority is signed by some other higher official, then the question of possibility of predetermination would not arise. Since, in this case, the detaining authority played dual role, the contention of the learned counsel for the petitioner that the same led to predetermination of mind on the part of the detaining authority, is acceptable.

6. Following the said decision, this Habeas Corpus Petition is allowed and the impugned Detention Order, passed by the first respondent, in his proceedings in Cr.M.P.No.23/2017 dated

08.07.2017 is quashed. The detenu, namely Atheeswaran, S/o.Ponnaiyappan, aged about 35 years, is ordered to be set at liberty forthwith, if he is not required for detention in connection with any other case.

Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar To 1.The District Magistrate and District Collector Virudhunagar, Virudhunagar District 2.The Principal Secretary to Government, Home, Prohibition & Excise Department, Secretariat Chennai - 600 009.

3.The Superintendent of Prison, Central Prison, Madurai Madurai District.

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

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

+1cc to M/S.K.Prabhu, Advocate SR.No. 91533 Order made in H.C.P.(MD)No.1128 of 2017 Dated: 04.12.2017 rr JM/SV MMS/SAR 4/14.12.2017/3P/7C