Samidurai v. The Principle Secretary To

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03.06.2019

CORAM:

THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN and THE HONOURABLE MR.JUSTICE B.PUGALENDHI H.C.P.(MD)No.1674 of 2018 Samidurai ... Petitioner Vs.

1. State of Tamil Nadu, rep, by REp. By the Principal Secretary to Government, Home, Prohibition and Excise Department, Fort.St.George, Chennai-600 009.

2. The District Collector and District Magistrate, Tirunelveli District, Tirunelveli.

3. The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli.

... 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 connected with the detention order passed in M.H.S.Confdl No.134 of 2018 dated 14.11.2018 on the file of the second respondent herein and quash the same and direct the respondents to produce the detenu or body of the detenu namely Samidurai, aged about 22 years S/o Sundarapandi now detained at Central Prison, Palaymkottai before this Court and set him at liberty forthwith.

For Petitioner : Mr.N.N.Pragalathan For Respondents : Mr.K.Dinesh Babu Additional Public Prosecutor

ORDER

(Order of the Court was made by M.SATHYANARAYANAN, J) The petitioner himself is the detenu and challenge is made to the order of detention dated 14.11.2018 passed by the second respondent, under which, the detenu has been branded as "Goonda" and detained under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber Law Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Sexual

Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982).

2.As per the grounds of detention passed by the second respondent, the detenu came to adverse notice in the following cases:

(i) Crime No.202 of 2016 on the file of Nanguneri Police Station under Section 379 (Sand Theft) IPC.

(ii) Crime No.195 of 2016 on the file of Eruvadi Police Station under Sections 341, 294(b), 324, 506(ii) IPC.

(iii) Crime No.216 of 2018 on the file of Nanguneri Police Station under Sections 294(b), 353, 307, 506(ii) and Sections 3 and 4 of Tamil Nadu Property (Prevention of Damage and Loss Act 1992. (iv) Crime No.285 of 2018 on the file of Nanguner Police Station under Sections 341, 294(b), 324, 307, 506(ii) IPC r/w Section 5 of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 altered into Sections 120(b), 147, 148, 341, 294(b), 324, 307, 506(ii) IPC r/w Section 5 of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992. (v) Crime No.286 of 2018 on the file of Nanguneri Police Station under Sections 341, 294(b), 324, 307, 506 (ii) IPC r/w Section 5 of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 altered into Sections 120(b), 147, 148, 341, 294(b), 324, 307, 506(ii) IPC r/w Section 5 of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992.

3. The grounds of detention read that on 04.11.2018 at 22.55 hours one Samidurai and his associates trespassed into the compound of Nanguneri Police Station and threatened towards the Sentry Police and subsequently the detenu and his associates has damaged the front glass of the car bearing Registration No.TN-09-BL-3301, which was parked in the police Station by pelting stones. When the police party came, the detenu threatened them by brandishing Aruval and also scolded the police party in filthy language and thereby, prevented the public servant from discharging their duties. On the basis of the complaint given by the complainant the Sub Inspector of Police, Nanguneri Police Station registered a case in crime No.

323 of 2018 for the offence punishable under Sections 294(b), 353, 307, 506(ii) IPC r/w 3 of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992. The detenu was arrested on 07.11.2018 and produced the detenu before the learned Judicial Magistrate, Nanguneri and remanded to judicial custody on 20.11.2018. 4.The detaining authority being satisfied with the materials placed by the sponsoring authority that the activities of the detenu are prejudicial to the maintenance of public order, clamped the order of detention.

5.The learned counsel for the petitioner would submit that in connection with the ground case, the detenu was arrested and arrest intimation was given to his father, namely, Sundarapandi through SMS through Mobile No.9600568262 and for having sent arrest intimation to the mother of the detenu through SMS, no material whatsoever has been produced and it is obligatory on the part of the detaining authority, to furnish the text of the SMS message and in the absence of the same, the order of detention is vitiated and prays for quashment of the same.

6.Per contra the learned Additional Public Prosecutor by drawing attention of this Court to the counter affidavit filed by the second respondent would submit that the detention order is passed on proper application of mind to the entire materials and prays for dismissal of this petition.

7.This Court has carefully considered the rival submissions on either side and perused the materials placed on records. 8.Perusal of page No.319 of the booklet would disclose that the arrest intimation of the detenu in connection with the ground case was sent to the father of the detenu through SMS through the said mobile number. Admittedly, copy of the said text message alleged to have been sent to the father of the detenu has not been produced and in the absence of the same, it cannot be stated that arrest intimation was given to the father of the detenu, which is one of the basic principles to be complied with as per the decision of the Honourable Supreme Court in D.K.Basu Vs. State of West Bengal reported in AIR (1997) SC 610. Hence, on that sole ground, the impugned order is liable to be quashed.

9. In the result, this Habeas Corpus Petition is allowed and the impugned order of detention in M.H.S.Confdl No.134 of 2018 dated 14.11.2018, passed by the second respondent is quashed. The detenu, Samidurai, son of Sundarapandi, is directed to be set at liberty forthwith, unless his detention / remand is required in connection with any other case / proceedings.

sd/ Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To

1. The Principal Secretary to Government, Home, Prohibition and Excise Department, Fort.St.George, Chennai-600 009.

2. The District Collector and District Magistrate, Tirunelveli District, Tirunelveli.

3. The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli.

4. The Joint Secretary to Govt., Public(LAw &Order), Fort St. George, Chennai 9

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

H.C.P(MD)No.1674 of 2018 03.06.2019 ta MK (17.06.2019) 4P 6C