Madras High CourtHCP(MD)/948/2017allowed

Abhinesh v. State Of Tamil Nadu

2017-11-07Honourable Mr Justice R.Subbiah,Honourable Mr Justice A.D.Jagadish Chandira3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07.11.2017

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBBIAH AND THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA H.C.P.(MD)No.948 of 2017 Abhinesh : Petitioner Vs.

1.State of Tamil Nadu, Rep. by the Secretary Home, (Prohibition and Excise Department), Fort. St.George, Chennai - 9.

2.The Commissioner of Police, Office of the Commissioner of Police AR Line Road, Koripallam, Palayamkottai, Tirunelveli City 3.The Superintendent District Prison and Borstal School Pudhukottai : 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 relating to the Detention Order No.38/BCDFGISSSV/2017 dated 12.06.2017 passed by the second respondent under Tamilnadu Act 14/1982 and quash the same and direct the respondent to produce the detenu Abis @ Karmegam, aged about 20 years son of Aruldoss now confined in District Prison, and Borstal School, Pudhukottai, before this Court and set the detenu, Abis @ Karmegam, aged about 20 years, son of Aruldoss set at liberty.

For Petitioner : Mr.P.Krishnan For Respondents : Mr.C.Ramesh Additional Public Prosecutor *********

ORDER

****** [Order of the Court was made by R.SUBBIAH, J] The petitioner is the brother of the detenu viz.Abis @ Karmegam, son of Aruldoss, aged about 20 years. The detenu has been detained, as per the order of the second respondent, dated

12.06.2017, 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 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 on 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 12.06.2017 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, passed by the second respondent, in his proceedings in Detention Order No.38/BCDFGISSSV/2017 dated 12.06.2017, is quashed. The detenu, namely Abis @ Karmegam, son of Aruldoss, aged about 20 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(RTI) /True Copy/ Sub-Assistant Registrar To 1.The Secretary State of Tamil Nadu, Home, (Prohibition and Excise Department), Fort. St.George, Chennai - 9.

2.The Commissioner of Police, Office of the Commissioner of Police AR Line Road, Koripallam, Palayamkottai, Tirunelveli City 3.The Superintendent District Prison and Borstal School Pudhukottai 4.The Joint Secretary to Government, Public (Law and Order) Fort Saint George, Chennai-600 009 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+One cc to Mr.P.Krishnan, Advocate, SR.No.85571 RR RL/7C/3P/KK/SAR1/17/11/2017 Order made in H.C.P.(MD)No.948 of 2017 Dated: 07.11.2017