Subramanian v. The Principal Secretary To

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:20.10.2017

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBBIAH AND THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA H.C.P.[MD].No.804 of 2017 Subramanian : Petitioner Vs.

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

2. The District Collector and District Magistrate, Thoothukudi District, Thoothukudi.

3. The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli.

: 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 of the respondent No.2 in H.S.(M) Confdl No.28/2017, dated 21.05.2017, and quash the same and direct the respondents to produce the detenu or body of the detenu by name,Subramanian, aged about 34 years, S/o.Samy Asari, now detained at Central Prison, Palayamkottai, before this Court and set him at liberty forthwith.

For Petitioner : Mr.N.Pragalathan 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 detenu - Subramanian, aged about 34 years, S/o.Samy Asari. The detenu has been detained, as per the order of the second

respondent in H.S.(M) Confdl No.28/2017, dated 21.05.2017, 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 21.05.2017 and passed the detention order on 21.05.2017. 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.

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.H.S.(M) Confdl No.28/2017, dated 21.05.2017, passed by the second respondent is set aside and the detenu by name, Subramanian, S/o.Samy Asari, aged about 34 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(AE) /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 District Collector and District Magistrate, Thoothukudi District, Thoothukudi.

3. The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli.

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

NS VB/MR/SAR1/02/11/2017/3P/5C ORDER MADE IN H.C.P.[MD].No.804 of 2017 20.10.2017