BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23/04/2008
CORAM
THE HONOURABLE MRS. JUSTICE R. BANUMATHI
AND
THE HONOURABLE MR. JUSTICE S.MANIKUMAR
HCP.No(MD).35 of 2008
Shanmugathai ... Petitioner
vs.
1. The District Magistrate
and District Collector,
Tuticorin District,
Tuticorin.
2. The Secretary to the Government,
Prohibition and Excise Department,
Fort St. George, Chennai-9. ... Respondents
Petition is filed under Article 226 of the Constitution of India praying
for a Writ of Habeas Corpus, to call for the records from the first respondent
in M.H.S.Confdl.No.47/2007, dated 13.12.2007 setting aside the said order of
detention passed by the first respondent and to set the petitioner's son, viz.,
Manickaraja at liberty, now detained in the Central Prison, Palayamkottai.
!For Petitioner ... Mr.V.Kathirvelu
^For Respondents ... Mr.Daniel Manoharan
Additional Public Prosecutor
:ORDER
(Order of the Court was made by S.MANIKUMAR,J)
Mother of the detenu, has filed this Habeas Corpus Petition, for quashing
the order of detention passed against her son K.Manickaraja Son of Kruppasamy
Thevar, branding him as Goonda under the Tamil Nadu Act 14 of 1982 and detained
by virtue of the order dated 13.12.2007 passed by the District Collector and
District Magistrate, Tuticorin, the first respondent herein.
2.In the order of detention, reference has been made to the involvement of
the detenu in two adverse cases. One on the file of the Elayirampannai Police
Station in Cr.No.80 of 2007 under Sections 342 and 307 IPC and the other for his
alleged commission of offences under Sections 294(b), 387 and 506(ii) IPC., on
the file of the Koppampatti Police Station in Cr.No.52 of 2007. Besides,
coming to adverse notice in the above two cases, on 12.10.2007, the detenu and
his associates were alleged to have cut and brutally murdered one
Balasubramanian on the spot. By indulging in such act, his associates were
alleged to have created fear and panic in the mind of the public and on the
basis of a complaint, a case in Kalugumalai Police Station Cr.No.90 of 2007 was
registered against the detenu and others under Sections 147, 148 and 302 IPC.
The detenu surrendered himself in the Court of the learned Judicial Magistrate
on 15.10.2007 and after brief spell in the police custody, he is now confined in
Central Prison, Palayamkottai. The case is under investigation.
3.The detaining authority after narrating the incident in the grounds
case, came to the conclusion that it was necessary to detain him as Goonda under
the Act 14 of 1982. While considering the possibility of the detenu coming out
on bail and indulging himself in further activities prejudicial to the
maintenance of the public order, the detaining authority has arrived at the
subjective satisfaction, and at paragraph 4 of the detention order, concluded as
follows:-
"4. I am aware that Thiru.Manickaraja was produced before the court of
Judicial Magistrate No.I, Kovilpatti after police custody on 23.10.2007 and
remanded to judicial custody till 06.11.2007. He is a remand prisoner kept in
Central Prison, Palayamkottai. His remand period was extended upto 20.11.2007,
04.12.2007 and 18.12.2007. I am aware that Thiru.Manickaraja has filed bail
application in the court of Principal Sessioins, Thoothukudi in
Cr.M.P.No.3281/07 and the same has been posted on 14.12.2007. I am also aware
that it is very likely that he may come out of bail. If he comes out on bail,
he will indulge in further activities which will be prejudicial to the
maintenance of public order. Further, the recourse of normal criminal law would
not have the desired effect of effectively preventing him from indulging in such
activities, which are prejudicial to the maintenance of public order. On the
materials placed before me, I am satisfied that the said Thiru.Manickaraja is a
"Goonda" and there is a compelling necessity to detain him in order to prevent
him from indulging in such activities in future which are prejudicial to the
maintenance of public order under the provisions of Tamil Nadu Act 14 of 1982."
4.Referring to the endorsement made by the learned Judicial Magistrate
No.I, Sattur, dated 15.11.2007, on the memo filed by the Inspector of Police,
Alangulam Circle, Alangulam, found at Page 65 the copy of the extract of case
dairy at page 67, enclosed in the booklet furnished to the detenu and inviting
the attention of this Court to Paragraph 4 of the Detention Order, learned
counsel for the petitioner submitted that the detaining authority has merely
referred to the pendency of the adverse cases and the bail application in
Cr.M.P.No.3281 of 2007 filed in the ground case, pending on the file of the
learned Principal Sessions Judge, Thoothukudi and has failed to consider that
the detenu was under custody in two other adverse cases also. Placing reliance
on the decision of this Court in Sureka Vs. State of Tamil Nadu reported in
2007(1) MLJ (Crl.) 257 he submitted that the detaining authority ought to have
considered the possibility of the detenu being released on bail in the adverse
cases also, and therefore there is non-application of mind on the part of the
detaining authority. Placing reliance on Sumaiya v. The Secretary to Govt.,
reported in 2007 (2) MWN (Cr.) 145, he submitted that there is delay in disposal
of the representation made by the detenu.
5.Reiterating the averments made in the counter affidavit filed by the
first respondent, Mr.Daniel Manoharan, learned Additional Public Prosecutor
appearing on behalf of the respondents submitted that only after careful
consideration of the materials placed before him, the detaining authority,
having arrived at the subjective satisfaction that the detenu was in judicial
custody in the cases registered against him, passed the order of detention. He
further submitted that till the date of detention, the detenu had moved a bail
petition only in one case in Kalugumalai Police Station Cr.No.90 of 2007 in
Cr.No.3281 of 2007 on the file of the learned Principal Sessions Judge,
Thoothukudi and that, it was very likely that the detenu on coming out on bail
in the ground case would also file bail applications in other two cases.
Therefore, the detaining authority has rightly come to the conclusion that there
is every likelihood that the detenu would come out of bail in the case
registered against him. Going by the date of representation of the detenu,
remarks received and other particulars mentioned in the Chart produced at the
time of hearing, he further submitted that there was no delay in considering the
representation of the detenu.
6.We heard the counsel appearing for the parties and perused the materials
available on record.
7.On perusal of the chart, we are convinced that there is no delay in
considering the representation of the detenu and therefore, the contention is
rejected.
7A.Considering the other point raised by the learned counsel for the
petitioner, admittedly, the detenu has come to the adverse notice of the police
in two criminal case in Elayirampannai Police Station Cr.No.80 of 2007 under
Sections 342 and 307 IPC and another case in Kuppampatti Police Station Cr.No.52
of 2007 under Sections 294(b), 387 and 506(ii) IPC. In the ground case, the
detenu had surrendered himself before the learned Judicial Magistrate, Nanguneri
on 15.10.2007 and was taken to police custody on 22.10.2007. Thereafter, he was
produced before the Court of the learned Judicial Magistrate No.II, Koilpatti on
23.01.2007 and remanded to judicial custody upto 06.11.2007 in Central Prison,
Palayamkottai. At Paragraph 4 of the detention order, reference has been made
to the periodical extension of the remand upto 18.12.2007 and, the filing of the
bail application in the ground case and the likelihood of the defence coming out
on bail. Though the detenu is in judicial custody in respect of the two adverse
cases also, the detaining authority has not at all adverted to the fact as to
whether there is any possibility of the detenu coming out on bail in said cases.
8. In similar circumstances, this Court in Suneka v. State of Tamil Nadu
reported in 2007 (1) MLJ (Crl) 257, following the decisions in Anjalammal v.
State of Tamil Nadu (2004 MLJ (Crl) 829) and Balasubramanaian v. Commissioner of
Police, Madurai City (2006 (1) MLJ (Crl) 37, at Paragraph 6 held as follows:
"Non-application of mind is on account of the fact that the detenu has
been remanded in connection with two cases, but the detaining authority has
referred to the possibility of the detenu being released on bail by referring to
the bail Applications Crl.M.P.Nos.4007 and 4050 of 2006, which had been filed in
Cr.No.44 of 2006. In other words, the detaining authority has not at all
considered the possibility of the detenu being released in other case. Even if
bail order would have been passed in Cr.No.44 of 2006, the detenu would be still
detained in prison as no bail application had been filed in connection with the
earlier case, ie., Cr.No.37 of 2006. The detaining authority has not at all
applied his mind to the aforesaid aspect. As a matter of fact, almost on
similar circumstances, the Division Bench in Balasubramanian @ Subramanian @
Subbudu @ Subbu v. Commissioner of Police, Madurai City (supra), had quashed
such detention on account of the fact that the detaining authority had only
referred to filing of bail application in one crime and there is no reference to
filing of bail application in connection with other similar crime."
9.In the case on hand, scrutiny of Paragraph 4 of the grounds of
detention reveals that the detaining authority has failed to consider that even
if the detenu was to be released on bail in the ground case, still he would be
under confinement in other two adverse cases. The decision relied on by the
learned counsel for the petitioner, would be applicable to the facts of the
present case and therefore, we are constrained to quash the order of detention,
though the allegations against the detenu are quite serious in nature.
10.In the result, the Habeas Corpus Petition is allowed. The detenu
K.Manickaraja Son of Kruppasamy Thevar confined in Central Prison,
palayamkottai, is directed to be released forthwith, unless his presence is
required in connection with any other case. No costs.
skm/sms
To
1. The District Magistrate
and District Collector,
Tuticorin District,
Tuticorin.
2. The Secretary to the Government,
Prohibition and Excise Department,
Fort St. George, Chennai-9.
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