S.Maheswari v. The District Magistrate And

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.01.2017

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBBIAH AND THE HONOURABLE MRS.JUSTICE J.NISHA BANU H.C.P.(MD)No.1000 of 2016 S.Maheswari : Petitioner Vs.

1.The State rep. by The District Magistrate & District Collector, Dindigul, Dindigul District.

2.The Secretary, The Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.

3.The Superintendent, Central Prison Madurai : 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 records relating to the detention order passed by the second respondent in Detention Order No.19/2016, dated 03.07.2016 and quash the same and direct the respondents to produce the body or person of Jeyaram, the detenu aged about 25 years, S/o. Soundaram, now detained at Central Prison, Madurai before this Court and set him at liberty.

For Petitioner : Mr.A.Chandrakumar For Respondents : Mr.C.Mayilvahana Rajendran, Additional Public Prosecutor *********

ORDER

****** [Order of the Court was made by R.SUBBIAH, J] The petitioner is the mother of the detenu - Kethaan Alagar @ Alagar, aged about 38 years. The detenu has been detained by the second respondent by his order in Detention Order No.19/2016, dated 03.07.2016, holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982. 2.Though a number of grounds have been raised assailing the order of detention, at the time of making submission, the learned counsel for the petitioner submitted that the Detaining Authority, while arriving at the subjective satisfaction that there is likelihood of the detenu coming out on bail, has relied upon the

bail granted in a similar case registered in Crime No.55 of 2016, on the file of Varusanadu Police Station, for the offences under Sections 147, 148, 341, 294(b), 109, 506(ii), 302 IPC r/w 34 of the Indian Penal Code. Though the Detaining Authority has relied upon the bail granted in the said case, he has not furnished a copy of the bail application filed in the said case. Therefore, non-furnishing of the document relied on would vitiate the order of detention.

3. In this regard, the learned counsel for the petitioner has also relied upon number of judgments delivered by the Division Benches of this Court, one such case relied upon by the petitioner is H.C.P.No.2433 of 2015 in the case of Shanmugavel vs. State of Tamil Nadu, wherein, this Court, by relying upon the dictum laid down by the Hon'ble Supreme Court in M.Ahamed Kutty vs. Union of India and another [1990(2) SCC 1], has quashed the detention order. The relevant portion from the said judgment reads as follows:

"7. Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenu's right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case." (Emphasis added)."

4. The said Judgment is squarely applicable to the case on hand also. Therefore, following the dictum laid down by the Hon'ble Supreme Court, we hold that the impugned detention order is vitiated and the same is liable to be set aside.

5. In the result, this Habeas Corpus Petition is allowed and the impugned Detention Order, passed by the second respondent, in his proceedings in Detention Order No.19/2016, dated 03.07.2016, is quashed. The detenu, namely Jeyaram, the detenu aged about 25 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(Crl.Side) /True Copy/ Sub-Assistant Registrar

To 1.The District Magistrate & District Collector, Dindigul, Dindigul District.

2.The Secretary, The Government of Tamil Nadu, Home, Prohibition and Excise Department, Fort St.George, Chennai - 600 009.

3.The Superintendent, Central Prison, Madurai 4.The Joint Secretary to Government, Public (Law and Order) Department, Fort Saint George, Chennai 5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+One cc to Mr.A.Chandrakumar, Advocate, SR.No.1230 rj2 RL/7C/3P/SV/24.1.2017 Order made in H.C.P.(MD)No.1000 of 2016 Dated: 05.01.2017