Baskaran, S/O.Krishnamoorthy v. The Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02.02.2017

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBBIAH AND THE HONOURABLE MRS.JUSTICE J.NISHA BANU H.C.P.[MD].No.1071 of 2016 Baskaran [Amended as per the order of this Court dated 01.09.2016 made in Crl.M.P.(MD)No.8103 of 2016] : Petitioner Vs.

1.The Secretary to Government, State of Tamil Nadu, 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 Superintendent of Prison, Madurai Central Prison, Madurai District.

: 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 No.53/BCDFGISSSV/2016, dated 03.08.2016 and quash the same and direct the respondents to produce the detenu by name Mohandoss, son of Krishnamoorthy, aged about 45 years, detained in Madurai Central Prison, before this Court and set him at liberty forthwith.

For Petitioner : Mr.R.Alagumani For Respondents : Mr.C.Mayilvahana Rajendran, 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 brother of the detenu - Mohandoss, son of Krishnamoorthy, aged about 45 years. The detenu has been detained, as per the order of the second respondent in No.53/BCDFGISSSV/2016, dated 03.08.2016, 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 Additional 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 02.08.2016 and passed the Detention Order on 03.08.2016. 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. 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."

5. Following the said decision, this Habeas Corpus Petition is allowed and the impugned detention order in No.53/BCDFGISSSV/2016, dated 03.08.2016, passed by the second respondent is set aside and the detenu, by name Mohandoss, son of Krishnamoorthy, aged about

45 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(Co) /True Copy/ Sub Assistant Registrar To 1.The Secretary to Government, State of Tamil Nadu, 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 Superintendent of Prison, Madurai Central Prison, Madurai District.

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

5.The Joint Secretary to Government, Public (Law & Order) Fort St.George, Chennai-9 SML AE/JM/13.02.2017/3P/6C ORDER MADE IN H.C.P.[MD].No.1071 of 2016 Dated: 02.02.2017