Madras High CourtHCP(MD)/223/2016allowed

Thiruttukumar Alias Ganesh v. The Secretary To Govt.,

2016-05-17Honourable Mr Justice M.V. Muralidaran,Honourable Mr Justice B. Gokuldas3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 17.05.2016 Coram THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN AND THE HONOURABLE MR.JUSTICE B.GOKULDAS H.C.P(MD)No.223 of 2016 Thiruttukumar @ Ganeshkumar .. Petitioner Vs.

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

2. The District Collector and District Magistrate, O/o.The District Collector and District Magistrate, Nagapattinam District, Nagapattinam.

3. The Superintendent, Central Prison, Tiruchirappalli.

.. Respondents Prayer:- Habeas Corpus Petition is filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus praying to call for the entire records in detention order passed in C.O.C.NO.16/2016 dated 06.02.2016 on the file of the 2nd respondent herein and set aside the same as illegal and direct the respondents to produce the petitioner namely Thiruttukumar @ Ganeshkumar, Son of Kuppusamy, Male, aged 25 years, who is detained in Central Prison, Tiruchirappalli before this Court and set him at liberty.

For Petitioner : Mr.K.A.S.Prabhu For Respondents : Mr.C.Ramesh Additional Public Prosecutor

ORDER

(Order of the Court was made by M.V.MURALIDARAN, J. and B.GOKULDAS, J.) The petitioner is the detenu. The detenu was detained by the second respondent by his order in C.O.C.NO.16/2016 dated 06.02.2016, holding him to be a "Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982, taking note of the ground case in Crime No.2 of 2016 on the file of Velankanni Police Station registered for the offences punishable under Sections 147, 148, 448, 294(b) and 302 of IPC and the following adverse case:- "Crime No.1 of 2016 registered on the file of Nagapattinam Town Police Station for an offence punishable under Section 302 of IPC."

2. The Detaining Authority, expressing subjective satisfaction that the detenu conformed to the definition of "Goonda" and that his presence at large would be prejudicial to the maintenance of public order and public health and also expressing subjective satisfaction that it was very likely that the detenu would come out on bail in the ground case, passed the impugned detention order. The said order is challenged in the present Habeas Corpus Petition.

3. Though a number of grounds have been raised assailing the order of detention, the learned counsel for the petitioner mainly relies on the following contention:- "There was denial of reasonable opportunity to challenge the order of detention in an effective manner by the non-supply of a copy of the Government Order extending the delegation of power to the Detaining Authority. The failure to supply a copy of the Government Order even after a representation was made in writing seeking supply of the same amounts to denial of reasonable opportunity vitiating the order of detention itself."

4. The submissions made by the learned Additional Public Prosecutor in reply to the above said contention raised by the learned counsel for the petitioner are also heard.

5. So far as the contention of the learned counsel for the petitioner regarding the non-furnishing of the Government Order is concerned, admittedly, the power delegated to the Detaining Authority was being periodically extended by fresh Government Orders passed once in three months and a copy of the latest Government Order extending the delegation, which has been referred to in the detention order, has not been furnished to the detenu. Though non-furnishing of the same initially may not be taken serious note of, when a representation is made seeking supply of a

copy of the said Government Order to make an effective challenge to the detention order, such request ought to have been considered properly and the failure to do so and the mechanical rejection of such request amounts to denial of reasonable opportunity to make an effective challenge to the order of detention. On that score alone, the order of detention is liable to be set aside. 6.In the result, the Habeas Corpus Petition is allowed and this Court sets aside the order of detention dated 06.02.2016, made in C.O.C.NO.16/2016, by the second respondent, the District Collector and District Magistrate, Office of the District Collector and District Magistrate, Nagapattinam District, Nagapattinam and directs the release of the detenu by name Thiruttukumar @ Ganeshkumar, Son of Kuppusamy, aged about 25 years forthwith, if his continued custody is not authorised in specific cases or by any other detention order.

Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar To

1. The Secretary to Government, Home, Prohibition and Excise Department, Fort St.George, Chennai-9.

2. The District Collector and District Magistrate, O/o.The District Collector and District Magistrate, Nagapattinam District, Nagapattinam.

3. The Superintendent, Central Prison, Tiruchirappalli.

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

5. The Joint Secretary to Government, Public (Law and Order), Secretariat, Chennai - 9

6. The Inspector General of Prisons, Chennai. Ps/am JM/KBM/SAR-III/02.06.2016/3P-7C H.C.P(MD)No.223 of 2016 17.05.2016