Judgment · High Court · 2007
Case at a glance
Provisions considered
- Constitution of India arts. 21, 226
- Tamil Nadu Act
Key paragraphs
- Para 88. Except the above said averment in the counter affidavitnothing has been stated explaining the averment contained in para 4of the grounds of detention. A reading of para 4 of the grounds ofdetention clearly shows that the Detaining Authority was of theopinion that except in…
- Para 1111. Though the detneu is said to be involved in six cases ofcheating and misappropriation involving very huge amounts and theallegations made against the detenu are serious, we areconstrained to quash the order of detention for the above saidreasons. The Habeas Corpus Petition is accordingly…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.04.2007CORAMTHE HONOURABLE MR. JUSTICE P.K.MISRAANDTHE HONOURABLE MR. JUSTICE K.MOHAN RAMHabeas Corpus Petition No.1097 of 2006 Venkatesan @ Maya Venkatesan .. Petitioner-Vs.-1. State of Tamil Nadu, Represented by its Secretary, Prohibition and Excise Department, Fort St. George, Chennai – 600 009.
The Commissioner of Police, Greater Chennai, Commissioner's Office, Egmore, Chennai – 600 008... RespondentsPrayer.:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Habeas Corpus callingfor the records of the detention order No.217/2006 dated 15.08.2006,on the file of the second respondent herein and quash the same anddirect the respondents herein to produce the body of the detenueVenkatesan @ Maya Venkatesan before this Hon'ble Court and set himat liberty. For Petitioner : Mr. Natarajan Senior Counsel for M/s. A. Madhumathi. For Respondents : Mr. M.Babu Muthu Meeran, Additional Public Prosecutor.- - -
O R D E RK.MOHAN RAM, J.The detenu was detained as a "Goonda" as contemplated under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, DrugOffenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of https://hcservices.ecourts.gov.in/hcservices/ 1982), by the impugned detention order, dated 15.08.2006. ThisHabeas Corpus Petition is filed by the detenu himself challenginghis detention.2. Heard Mr.Natrajan, learned senior counsel for the petitionerand Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor forthe respondents.
The learned senior counsel for the petitioner made thefollowing submissions:- (i) By referring to the following passage contained in para 4of the grounds of detention namely: "Para 4. I am aware that Thiru. Venkatesan @ MayaVenkatesan is in remand in Chennai City Central CrimeBranch "X" Crime Nos.472/2006, 492/2006, 499/2006,633/2006, 634/2006, 635/2006 and 638/2006 and he movedbail applications before the XIMetropolitan Magistrate Court, Saidapet, Chennai, in Crl.M.P.Nos.2585/2006 to 2687/2006,Crl.M.P.Nos.2633/2006 to 2635/2006 and Crl.M.P.No.2723/06 in the above cases and all of themare pending. I am also aware that it is very likely ofhis coming out on bail in all the above cases except in Central Crime Branch "X" Crime No.633/2006 (bailable by Sessions Court) since in similar cases bails are grantedby the same Court. If he comes out on bail, he willindulge in further activities, which will be prejudicialto the maintenance of public order.
Further therecourse to normal criminal law would not have thedesired effect of effectively preventing him fromindulging in such activities, which are prejudicial tothe maintenance of public order. On the materialsplaced before me, I am fully satisfied that the saidThiru. Venkatesan @ Maya Venkatesan is a Goonda and thatthere is a compelling necessity to detain him in orderto prevent him from indulging in such further activitiesin future which are prejudicial to the maintenance ofpublic order under the provisions of the Tamil Nadu Act14 of 1982."The learned senior counsel submitted that a reading of the abovesaid passage shows that though the Detaining Authority was of theopinion that there is no possibility of the detenu coming out onbail in respect of the case in Central Crime Branch "X" CrimeNo.633/2006, the Detaining Authority has mechanically stated that ifhe comes out on bail, he will indulge in further activities, whichwill be prejudicial to the maintenance of public order.
The learnedsenior counsel submitted that even in the opinion of the DetainingAuthority there is no imminent possibility of the detenu coming outon bail in respect of the said case but yet has passed the https://hcservices.ecourts.gov.in/hcservices/ detention order, which will clearly amount to non application ofmind on the part of the Detaining Authority. (ii) The learned Senior counsel further submitted that thedetenu sent his representation dated 14.09.2006 to the Governmentand the Government after calling for the remarks received the sameon 22.09.2006 and the same was dealt with by the Minister on30.09.2006 but rejection letter was sent to the detenu on 09.10.2006only and the intervening delay in disposing of the representation ofthe detenu has not been explained and therefore the valuable rightof the detenu has been affected and on that ground the order ofdetention is liable to be quashed.
Per contra, the learned Additional Public Prosecutorsubmitted that it is not correct to state that the DetainingAuthority was under the opinion that there is no imminentpossibility of the detenu coming out on bail in Crime No.633/2006.The learned Additional Public Prosecutor further submitted thatthough the Minister dealt with the representation on 30.09.2006because of the intervening holidays on 01.10.2006, 02.10.2006,07.10.2006 and 08.10.2006, the rejection letter could not be sentpromptly to the detenu.
The learned Additional Public Prosecutor further submittedthat the detenu is involved in more than 6 cases of cheating andhuge amounts have been misappropriated by the detenu and severalpersons are affected.
We have carefully considered the rival submissions made oneither side.
Even in the affidavit filed by the petitioner under ground'd' it is stated as follows: "(d) It is submitted that the sponsoring authority, the second respondent had admitted in the grounds of Detention that the detenue is very likely to come out onbail in all the ad verses cases except in Central CrimeBranch 'X' Crime No.633/2006, since in similar casesbails are granted by the same court. In other words, the sponsoring authority is of the opinion that there isno imminent possibility of the detenue coming out onbail relating to the case in Central Crime Branch 'X'Crime No.633/2006, hence there is no necessity to invokeAct 14 of 1982, and the detenue had been detained as"Goonda" due to non-application of mind by the detainingauthority, hence the detention order is shall to bequashed. " https://hcservices.ecourts.gov.in/hcservices/ while dealing with the said contention the Detaining Authority inthe counter affidavit filed by her in para 8 has stated as follows: "Para 8..... I submit that it is not correct tostate that this respondent was under the opinion thatthere is no imminent possibility to the detenu comingout on bail in Crime No.633/2006....."
Except the above said averment in the counter affidavitnothing has been stated explaining the averment contained in para 4of the grounds of detention. A reading of para 4 of the grounds ofdetention clearly shows that the Detaining Authority was of theopinion that except in Central Crime Branch 'X' Crime No.633/2006,it is very likely for the detenu to come out on bail in the othercases. When there was no imminent possibility of the detenu comingout on bail in respect of Central Crime Branch 'X' CrimeNo.633/2006, there was no necessity for detaining the detenu. Therefore, in our considered view the subjective satisfactionarrived at by the Detaining Authority is vitiated as a result of nonapplication of mind on the part of the Detaining Authority. On thisground the Detention Order is liable to be set aside.
While coming to the question of delay in dealing with therepresentation of the detenu, it has to be pointed out thatadmittedly the Minister dealt with the representation on 30.09.2006and though 01.10.2006, 02.10.2006, 07.10.2006 and 08.10.2006happened to be holidays, between 30.09.2006 to 09.10.2006 four clearworking days were available for the Minister to deal with therepresentation of the detenu and pass orders thereon, whereas therejection letter was sent to the detenu only on 09.10.2006 and hencethere is unexplained delay of four days which the learned AdditionalPublic Prosecutor is unable to explain.
In this context, it is useful to refer to the decision ofthe Apex Court reported in Rajammal Vs. State of Tamil Nadu andanother (AIR 1999 Supreme Court 684) in para 9 & 10 the Apex Courthas held as follows: "Para 9. The position, therefore, now is that ifdelay was caused on account of any indifference or lapsein considering the representation such delay willadversely affect further detention of the prisoner. Inother words, it is for the authority concerned toexplain the delay, if any, in disposing the https://hcservices.ecourts.gov.in/hcservices/ representation. It is not enough to say that the delaywas very short. Even longer delay can as well beexplained. So the test is not the duration or range ofdelay, but how it is explained by the authorityconcerned. Para.10. What happened in this case was that the Government which receives remarks from differentauthorities submitted that relevant files before the Under Secretary for processing it on the next day.
TheUnder Secretary forwarded it to the Deputy Secretary onthe next working day. Thus there is some explanationfor the delay till 09.02.1998. Thereafter, the file wassubmitted before the Minister who received it while hewas on tour. The Minister passed the order only on14.02.1998. Though there is explanation for the delaytill 9-2-1998, we are unable to find out any explanationwhatsoever as for the delay which occurred thereafter. Merely stating that the Minister was on tour and hencehe could pass orders only on 14-2-1998 is not ajustifiable explanation, when the liberty of a citizenguaranteed under Article 21 of the Constitution isinvolved. Absence of the Minister at the Headquartersis not sufficient to justify the delay, since the filecould be reached the Minister with utmost promptitude incases involving the vitally important fundamental rightof a citizen. "Thus it is clear that the Government is bound to explain the delay, if any, in disposing of the representation.
It is not enough to saythat the delay was very short. The test is not the duration orrange of delay, but how it is explained by the authority concerned. In this case, as pointed out above, there is absolutely noexplanation for the delay of four days. It is a constitutionalobligation to consider the representation forwarded by the detenuwithout any delay, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Hence on this groundalso the order of detention is liable to be quashed.
Though the detneu is said to be involved in six cases ofcheating and misappropriation involving very huge amounts and theallegations made against the detenu are serious, we areconstrained to quash the order of detention for the above saidreasons. The Habeas Corpus Petition is accordingly allowed and theorder of detention passed by the second respondent in proceedingsdated 15.08.2006 against the detenu is quashed and the detenu is https://hcservices.ecourts.gov.in/hcservices/ directed to be set at liberty forthwith from custody unless he isrequired in connection with any other case.kkSd/Asst. Registrar/true copy/Sub Asst. RegistrarTo1. The Secretary to the Government Prohibition and Excise Dept., Secretariat, Chennai – 600 009.2. The Commissioner of Police Greater Chennai, Chennai.3. The Public Prosecutor Madras High Court, Chennai.+ 2 ccs to A. Madhumathi, Advocate SR No. 21897 Order in H.C.P.No.1097 of 2006 SSV(CO)SR/12.4.2007
Questions this judgment answers
Which statutory provisions did this judgment involve?
Constitution of India — arts. 21, 226; Tamil Nadu Act.
Which court decided this case, and when?
Madras High Court, on 05 Apr 2007. The bench was K MOHAN RAM.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.