Malliga v. The State Of Tamil Nadu

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:06.12.2017

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBBIAH AND THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA H.C.P.[MD].No.1361 of 2017 Malliga : Petitioner Vs.

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

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

3.The Superintendent, District Jail cum Borstal School, Pudukottai, Pudukottai District.

: Respondents PRAYER: Petition is filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, to call for the records relating to the impugned Order of Detention made in P.D.No.12/2017 dated 09.04.2017 on the file of the District Collector and District Magistrate, Thanjavur, Thanjavur District, the 2nd respondent herein, branding the detenu by name, Surya, S/o.Kumar, aged about 18 years, as 'Goonda', who is now confined in District Jail cum Borstal School, Pudukottai, Pudukottai District and quash the impugned Order of detention and set him at liberty by producing him before this Court.

For Petitioner : Mr.A.Thiruvadikumar For Respondents : Mr.C.Ramesh Additional Public Prosecutor

O R D E R

*********** [Order of the Court was made by R.SUBBIAH, J.] The present Habeas Corpus Petition has been filed by the mother of the detenu - Surya, S/o.Kumar, aged about 18 years. The detenu has been detained, as per the order of the second respondent

in P.D.No.12/2017 dated 09.04.2017, under Section 2(f) of the Tamilnadu Act 14 of 1982, branding him as "Goonda". Challenging the same, the petitioner has come up with this Habeas Corpus Petition.

2. We have heard the learned counsel for the petitioner and the learned State 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 03.04.2017 and passed the detention order on 09.04.2017. 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 in P.D.No.12/2017 dated

09.04.2017, passed by the second respondent is set aside and the detenu by name, Surya, S/o.Kumar, aged about 18 years, is directed to be released forthwith, if his continued custody is not authorised in specific cases or by any other detention order. Sd/- Assistant Registrar(CS-III) /True Copy/ Sub Assistant Registrar To 1.The State of Tamil Nadu, Rep by the Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai-600 009.

2.The Joint Secretary to Government, (Law & Order) Fort St.George, Chennai-600 009.

3.The District Collector and District Magistrate, O/o.The District Collector and District Magistrate, Thanjavur District, Thanjavur.

4.The Superintendent, District Jail cum Borstal School, Pudukottai, Pudukottai District.

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

+1cc to Mr.A.Thiruvadi Kumar Advocate in SR. No. 91296 RR JS/SV.MMS/SAR.2/04.01.2018/3P-7C ORDER MADE IN H.C.P.[MD].No.1361 of 2017 06.12.2017