BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01/07/2009
CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
and
THE HONOURABLE Ms.JUSTICE R.MALA
H.C.P.(MD)No.250 of 2009
Sevanammal ... Petitioner
vs.
1.The Additional Secretary,
Government of India,
Ministry of Consumer affairs, Food
and Public Distribution
(Department of consumer affairs)
Room No.270, Krishi Bhavan,
New Delhi - 110 001.
2.The Secretary,
Government of Tamilnadu,
Co-operation, Food and Consumer
Protection Department,
Secratariat,
Channai - 9.
3.The District Collector and District
Magisatrate,
Theni District,
Theni.
4.The Inspector of Police,
CS.CID, Uthamapalayam,
Theni District. ... Respondents
Petition under Article 226 of the Constitution of India praying for
issuance of a Writ of Habeas Corpus calling for the records pertaining to the
order of detention passed by the third respondent in his proceedings Detention
order No.02/2009 (CS) dated 03.04.2009 and quash the same as illegal and produce
the detenu, namely Murugan @ Pottu Murugan, Son of Karuppa Thevar, who has been
confined in Central Prison, Madurai before this Court and set him at liberty.
!For Petitioner ... Mr.T.Lenin Kumar
^For Respondents ... Mr.P.N.Pandithurai,
Addl.Public Prosecutor.
:ORDER
R.MALA,J.
In this Habeas Corpus Petition, the Petitioner - wife of the
Detenu, challenges the order of detention clamped on the Detenu by the 3rd
Respondent, branding him as a "Goonda", under the provisions of the Tamil Nadu
Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest
Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and
Video Pirates Act, 1982 (in short "Tamil Nadu Act 14/1982).
2. Consequent upon the recommendations made by the Sponsoring
Authority that the Detenu was involved in two adverse cases, as detailed below,
1 C.S.C.I.D., Uthamapalayam Police U/s.6(4) of TNSC (RDCS) order 1982,
Station Cr.No.627/2008 r/w 7 (i) a (ii) of EC Act 1955
2 C.S.C.I.D., Uthamapalayam Police U/s.6(4) of TNSC (DDCS) order 1982,
Station Cr.No45/2009 r/w 7 (i) a (ii) of EC Act 1955
and in one ground case in Crime No.47/2009 under Section 6(4) of TNSC (DDCS)
order 1982 r/w 7 (i) (a) (ii) of EC Act 1955 on the file of C.S.C.I.D., Police
Station, Uthamapalayam. The Detaining Authority, on being satisfied that the
Detenu is habitually committing grave crime and is also acting in a manner
prejudicial to the maintenance of public order and branding him as a "Goonda",
as contemplated under the Tamil Nadu Act 14/1982, and if the Detenu comes out
on bail he will indulge in future activities, which will be prejudicial to the
maintenance of public order, passed the impugned order of detention.
3. Even though several contentions were raised and argued as
well, learned counsel for the Petitioner mainly confined his arguments to the
aspect of non-application of mind by the detaining authority while passing the
detention order. When the detenu was branded as a Black Marketeer, he is facing
two adverse case and one ground case. In ground case in crime No.47 of 2009 has
been registered on 20.03.2009 and arrested and produced before the learned
Judicial Magistrate, Uthamapalayam on 21.03.2009 and remanded till 03.04.2009.
In the second adverse case, the occurrence had taken place on 14.03.2009 and
case was registered in Crime No.45 of 2009 under Section (4) of TNSC (DDCS)
order 1982, r/w 7 (i) a (ii) of EC Act 1955. In this case also, the accused was
produced before the same Magistrate on 21.03.2009 and remanded till 03.04.2009.
But, in grounds of detention, in Paragraph 3, it was stated as follows:
"The accused was produced in the Judicial Magistrate Court, Theni on
21.03.2009 and remanded till 03.04.2009. Again he was produced before judicial
Magistrate, Theni on 03.04.2009 and his remand was extended till 27.04.2009 and
lodged at Uthamaplayam Sub Jail. The case is under investigation."
But, in the booklet, no remand extension report was enclosed. So, how the
sponsoring authority had prejudged that on 03.04.2009, the detenu will be
produced and the remand period will be extended till 17.04.2009. It is pre-
determination only.
4. It is the duty of the detaining authority that if there is
any inconsistencies in the materials placed before him, he ought to have
obtained clarification from the sponsoring authority. But, here, no
clarification has been obtained. Hence, the detaining authority has not applied
his mind while endorse his subjective satisfaction based on cogent materials.
In the above such circumstances, he prayed for quashing the detention order.
5. The learned Public Prosecutor has urged that the detaining
authority has considered all the materials and come to the conclusion to the
subjective satisfaction based on the cogent materials and passed the detention
order, there is no irregularity or infirmity in the impugned order and he prayed
for the dismissal.
6. On considering the arguments of both sides counsel and
perusal of records, the sponsoring authority has filed his affidavit on
31.03.2009, wherein he has stated as follows:
"The accused was produced in the Judicial Magistrate Court, Theni on
21.03.2009 and remanded till 03.04.2009. Again he was produced before judicial
Magistrate, Theni on 03.04.2009 and his remand was extended till 27.04.2009 and
lodged at Uthamaplayam Sub Jail. The case is under investigation."
Considering the above statement, how the sponsoring authority could know that
the accused would be produced on 03.04.2009 and remand period will be extended
upto 17.04.2009 on 31.03.2009 itself. But, when the matter has been placed
before the detaining authority, if the detaining authority has really perused
entire documents, he would have come across the vital mistake committed by the
sponsoring authority. The detention order has been passed on 03.04.2009. But,
there is no evidence to show that the detaining authority called for a
clarification regarding the inconsistency in the averments in his affidavit.
7. It is pertinent to note that in page No.131 of the booklet,
the ground case in Crime No.47/2009 under Section 6(4) of TNSC (DDCS) order 1982
r/w 7 (i) (a) (ii) of EC Act 1955 on the file of C.S.C.I.D., Police Station,
Uthamapalayam, at the time of remand, the learned Judicial Magistrate,
Uthamapalayam has mentioned as follows:
"The accused produced at 2.00 P.M. No complaints against police. The
reason for arrest explained to him. Remanded to custody till 03.04.2009."
In Page No.77 of the booklet, one ground case in Crime No.45/2009 under Section
6(4) of TNSC (RDCS) order 1982 r/w 7 (i) (a) (ii) of EC Act 1955 on the file of
C.S.C.I.D., Police Station, Uthamapalayam, at the time of remand, the learned
Judicial Magistrate, Uthamapalayam has mentioned as follows:
"The accused produced at 2.00 P.M. No complaints against police. The reason for
arrest explained to him. Remanded to custody till 03.04.2009."
But, there is no document to show that the remand has been extended from
03.04.2009 to 17.04.2009.
8. While perusing the entire materials, there is nothing to show
that the detaining authority has obtained clarification from the sponsoring
authority to show further remand extension of the detenu was done on 03.04.2009.
It is pre-determination and pre-judged minds of the sponsoring authority and non
application minds of the detaining authority.
9.The learned counsel for the petitioner would draw our attention to
the decision reported in (2007)1 MLJ (Crl) 967 (K.Raja @Sahaya Arokia Darmaraj
Vs. State of Tamil Nadu, rep. by Secretary to Government, Prohibition and Excise
Department, Chennai and Another) and culled out the following portion:
"The detention order passed passed by the detaining authority on
factually incorrect particulars furnished by the sponsoring authority and even
without clarifying the position from the sponsoring authority is liable to be
quashed."
We agree with the ratio decidendi laid down in the above citation and the same
is squarely applicable to the facts of the present case.
10. The detailing authority must show its awareness to the fact of
subsisting custody of the detenu and take that factor into account while making
the order, but, even so, if the detaining authority is reasonably satisfied on
account of cogent material that there is likelihood of his release and in view
of his antecedent activities which are proximate in point of time he must be
detained in order to prevent him from indulging an activity prejudicial to the
maintenance and supplies of Essential Commodities to the community, the order
can be validly made even in anticipation to operate on his release. So, the
detaining authority has not applyied his mind in respect of the remand
extension. Since the sponsoring authority filed an incorrect affidavit, in the
absence of any material, it cannot be said that the subjective satisfaction was
based upon cogent materials, which in our considered view, would have the effect
of vitiating the detention order.
11. Accordingly, the Habeas Corpus Petition is allowed and the
impugned order of detention in H.S.(M)Confdl.No.56/08, dated 23.11.2008, passed
by the 2nd Respondent,, is quashed. The Detenu Murugan @ Pottumurugan is
directed to be released forthwith, unless his presence is required, in
accordance with law, in connection with any other case.
arul
To:
1.The Additional Secretary,
Government of India,
Ministry of Consumer affairs, Food
and Public Distribution
(Department of consumer affairs)
Room No.270, Krishi Bhavan,
New Delhi - 110 001.
2.The Secretary,
Government of Tamilnadu,
Co-operation, Food and Consumer
Protection Department,
Secratariat,
Channai - 9.
3.The District Collector and District
Magisatrate,
Theni District,
Theni.
4.The Inspector of Police,
CS.CID, Uthamapalayam,
Theni District.
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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