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Madras High CourtHCP(MD)/260/2016allowed

Velayutham v. The Secretary To Government

2016-05-18Honourable Mr Justice M.V. Muralidaran,Honourable Mr Justice B. Gokuldas3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.05.2016

CORAM:

THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN and THE HONOURABLE MR.JUSTICE B.GOKULDAS H.C.P(MD)No.260 of 2016 Velayutham : Petitioner Vs.

1.State of Tamil Nadu, represented 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, Nagapattiam District, Nagapattinam.

3.The Superintendent, Central Prison, Tiruchirappalli.

: Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Habeas Corpus, to call for the entire records in detention order passed in C.O.C.No.20/2016 dated 19.02.2016 on the file of the second respondent herein and set aside the same as illegal and direct the respondents to produce the petitioner namely Velayutham, S/o Chinnaiyan, male, aged 34 years, who is detained in Central Prison, Tiruchirappalli before this Court.

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

O R D E R

[Order of the Court was made by M.V.MURALIDARAN, J. and B.GOKULDAS, J.] The petitioner - Velayutham, S/o Chinnaiyan, aged about 34 years, has been detained, as per the order of the second respondent, dated 19.02.2016, under Section 2(b) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest-offenders, Goondas, Immoral Traffic Offenders, Sand

Offenders, Slum-grabbers and Video Pirates Act,1982, (Tamil Nadu Act 14 of 1982), read with the order issued by the Government in G.O.[D].No.26, Home Prohibition and Excise (XVI) Department, dated 18.01.2016, branding him as "Boot-Legger", taking note of the ground case in Crime No.80 of 2016 on the file of Sirkazhi Prohibition Enforcement Wing registered for offences punishable under Sections 4(1)(aaa), 4(1)(i) r/w 4(1-A) TNP Act 1937 and the following two adverse cases:- (i) Crime No.940 of 2015 registered on the file of P.E.W., Mayiladuthurai, for offences punishable under Sections 4(1)(aaa), r/w 4(1-A) TNP Act 1937 ; and (ii)Crime No.69 of 2016 registered on the file of P.E.W., Sirkazhi, for offences punishable under Sections 4(1)(aaa), r/w 4(1-A) TNP Act 1937.

2. The Detaining Authority, expressing subjective satisfaction that the detenu conformed to the definition of "BootLegger" and that his presence at large would be prejudicial to the maintenance of public order 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 the order of detention is assailed on various grounds, the learned counsel for the petitioner contends that though the representation was made on 25.02.2016 by the detenu for revocation of the order of detention, the rejection order was passed by the second respondent only on 05.04.2016 and hence, there is a delay in considering the representation and the same will amount to denial of reasonable opportunity to the detenu to make an effective representation to the Government or to challenge the order of detention in an effective manner.

4. We also heard the submissions made by the learned Additional Public Prosecutor on the above said contentions raised on behalf of the petitioner.

5. The learned counsel for the petitioner has produced a copy of the order of rejection dated 05.04.2016. From the same, it is obvious that the order of rejection came to be passed on 05.04.2016 by the Detaining Authority and the same was served on the detenu only on 08.04.2016. The same amounts to denial of reasonable opportunity to the detenu to make an effective representation to the Government or to challenge the order of detention in an effective manner. There is no explanation offered for the said delay and the same vitiates the order of detention. On that ground 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 19.02.2016, made in C.O.C.No.20/2016 by the second respondent, the District Collector and District Magistrate, Nagapattiam District, Nagapattinam and directs the release of the detenu, by name Velayutham, S/o Chinnaiyan, aged about 34 years forthwith, if his continued custody is not authorised in specific cases or by any other detention order.

Sd/- Assistant Registrar (P&A) /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, Nagapattiam District, Nagapattinam.

3. The Superintendent, Central Prison, Tiruchirappalli.

4. The Joint Secretary to Government Public (Law & Order), Fort.St.George, Chennai-9.

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

Order Made in H.C.P(MD)No.260 of 2016 Dated: 18.05.2016 ssl/srm SH/SKS/SAR-III:01.06.2016:3P/6C