N.Jeyanthi v. Government Of Tamilnadu

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.01.2018

CORAM:

THE HONOURABLE DR.JUSTICE S.VIMALA AND THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI H.C.P.(MD)No.1466 of 2017 N.Jeyanthi : Petitioner/Wife of Detenu Vs.

1. Government of Tamilnadu Rep. by its Secretary to Government Home, Prohibition and Excise Department, Fort, St.George, Chennai - 9.

2. The Commissioner of Police, Trichy City, Trichy.

3. The Superintendent Central Prison, Trichy.

: Respondents PRAYER: Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Habeas Corpus, calling for the entire records connected with the detention order of the 2nd respondent in C.No.44/Detention/C.P.O./T.C./2017 dated 14.09.2017 and quash the same and direct the respondents to produce the body and person of the petitioner's husband namely, Andavar @ Nallendran son of Selvaraj, aged about 38 years now confined at Central Prison, Trichy and set him at liberty forthwith.

For Petitioner : Mr.B.Jameelarasu For Respondents : Mr.C.Ramesh Additional Public Prosecutor

ORDER

[Order of the Court was made by S.VIMALA, J] The petitioner is the wife of the detenu, viz. Andavar @ Nallendran, son of Selvaraj, aged about 38 years. The detenu has been detained, as per the order of the second respondent, dated 14.09.2017, under Section 2(f) of the Tamil Nadu 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 Additional Public Prosecutor appearing for the respondents. We have also perused the records carefully. 3.The learned counsel for the petitioner mainly raised two grounds, namely, (i) 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 13.09.2017 and passed the detention order on 14.09.2017.

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; and (ii) that while the detenu is in custody in connection with the adverse case in Crime No.1238 of 2017 and ground case in Crime No.1240/2017 on the file of the Cantonment Police Station, Trichy and bail applications are pending before the District and Sessions Judge, Trichy and while so, the presumption by the detaining authority that the detenu may come out on bail shows the non application of mind on the part of the detaining authority. Hence, on this ground also, 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 second respondent, in his proceedings in C.No.44/Detention/C.P.O./T.C./2017 dated 14.09.2017, is quashed. The detenu, namely Andavar @ Nallendran, son of Selvaraj, aged about 38 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(P&A) /True copy/ Sub Assistant Registrar To

1. The Principal Secretary to Government, State of Tamil Nadu Home, Prohibition and Excise Department, Fort, St. George, Chennai - 9.

2. The Commissioner of Police, Trichy City, Trichy.

3. The Superintendent Central Prison, Trichy

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

5. The Joint Secretary to Government, Public (Law and Order), Fort St. George, Chennai - 9 Order made in H.C.P.(MD)No.1466 of 2017 Dated: 22.01.2018 RR MKV-PM-PN-SAR 4/22.1.2018/3P-7C