Kadar Mydeen, v. The Principal Secretary To

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.1398 of 2017 Kadar Mydeen : Petitioner Vs.

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

2. The Commissioner of Police, Office of the Commissioner of Police, Madurai City, Madurai.

3. The Jailor / Superintendent, Borstal School & District Prison, Pudukkottai.

4. The Inspector of Police, E2 Mathichiyam (L&O) Police Station, Madurai.

: Respondents PRAYER: Petition is 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 in No.54/BCDFGISSSV/2017 dated 12.06.2017 on the file of the Respondent No.2 and quash the same as illegal and direct the respondents to produce the body and person of the petitioner's son namely, Mohamad Riyas, aged about 19 years, S/o.Kadar Mydeen, now confined at Borstal School & District Prison, Pudukottai before this Court and set him at liberty forthwith.

For Petitioner : Mr.S.M.A.Jinnah 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 father of the detenu - Mohamad Riyas, S/o.Kadar Mydeen, aged about

19 years. The detenu has been detained, as per the order of the second respondent in No.54/BCDFGISSSV/2017 dated 12.06.2017, 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 10.06.2017 and passed the detention order on 12.06.2017. 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 No.54/BCDFGISSSV/2017 dated 12.06.2017, passed by the second respondent is set aside and the detenu by name, Mohamad Riyas, S/o.Kadar Mydeen, aged about 19 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-I) /True Copy/ Sub Assistant Registrar To

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

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

3. The Commissioner of Police, Office of the Commissioner of Police, Madurai City, Madurai.

4. The Jailor / Superintendent, Borstal School & District Prison, Pudukkottai.

5. The Inspector of Police, E2 Mathichiyam (L&O) Police Station, Madurai.

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

RR TE/SV-MMS/SAR-3 : 21/12/2017 : 3P/7C ORDER MADE IN H.C.P.[MD].No.1398 of 2017 06.12.2017