Shanthi v. The Secretary to Government, Home Prohibition and Excise Dept., Secretariat, Chennai-600 009 & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 18.12.2009 CoramThe Honourable Mr. Justice M.CHOCKALINGAMandThe Honourable Mr. Justice V.PERIYA KARUPPIAHH.C.P. No.1824 of 2009Shanthi... Petitioner..Vs..1. The Secretary to Government, Home Prohibition and Excise Dept., Secretariat, Chennai-600 009.2. District Collector and District Magistrate, Dharmapuri District, Dharmapuri. ... RespondentsPetition filed under Article 226 of the Constitution ofIndia to issue a writ of Habeas Corpus, call for the records inconnection with the order of detention passed by the 2nd respondentdated 30.07.2009 in S.C.No.27/2009 against the husband of thepetitioner, Padaiyappa @ Ravi, aged 45 years, son of Vetrayan, who isconfined at Central Prison, Salem and set aside the same and directthe respondents to produce the detenu before this Court and set himat liberty. For Petitioner: Mr.S. SethilvelFor Respondents: Mr.V.R.Balasubramanian, Addl.P.P., for R1 & R2O R D E R(Order of the Court was made by M.CHOCKALINGAM, J.,)Challenge is made to an order of detention made by the secondrespondent herein dated 30.07.2009 in S.C.No.27/2009, whereby onePadaiyappa @ Ravi, the husband of the petitioner Shanthi, wasordered to be detained under Section 3(1) of the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ 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),terming him as an 'Immoral Traffic Offender'.2. The affidavit in support of the petition along with all thematerials including the order under challenge are perused. The Courtheard the learned Counsel for the petitioner.3. It is not in controversy that on the recommendations made bythe sponsoring authority that the said Padaiyappa @ Ravi was involvedin one averse case, namely, Dharmapuri P.S.Cr.No.1167/2009 dated19.06.2009 under Sections 3(1), 3(2)(a)(b), 4(1), 5(1)(a), 6(1)(a) ofITP Act and also on the strength of a ground case in Crime No.1302 of2009 registered by the same police on 20th July, 2009 under Sections 3(1), 3(2)(a)(b), 4(1), 5(1)(a), 6(1)(a) of Immoral Traffic PreventionAct, and on scrutiny of the materials available, the 2nd respondent,the detaining authority, after recording the subjective satisfactionthat the activities of the detenu were prejudicial to the publicorder and health, has made the order under challenge.4. Advancing the arguments on behalf of the petitioner, thelearned counsel would submit that the ground case came to beregistered against the detenu on 20th July 2009 and he was arrestedon the same day; that the bail application was filed inCrl.M.P.No.3839 of 2009; that when the application was taken up forconsideration by the Judicial Magistrate I, Dharmapuri, thecomplainant herself appeared before the Court and filed an affidavit,stating that she was forced to give a false complaint against theaccused and the complaint itself was not true; that even after thesaid affidavit was filed before that Court, that Court dismissed theapplication and thus, it will be quite clear from the said affidavitthat no such complaint was given by her; on the contrary, the recordswere collected by the sponsoring authority and placed materials inthat regard and the detaining authority, without taking intoconsideration the same, passed the order as if there was a complaintgiven by the complainant thereon and thus, it had no basis at all.Added further the learned counsel that there was a remand report andthe remand order was also made, which are available at page Nos.42and 43 of the booklet; that a perusal of the same would indicate thatno date is mentioned therein and that under such circumstances, thedetaining authority should have called for a clarification from thesponsoring authority, but not done so. Added further while the bailapplication came to be dismissed on 23.07.2009, and it was within theknowledge of the detaining authority, as found in the grounds ofdetention, the detaining authority has observed that there was areal possibility of the detenu coming out on bail by filing another https://hcservices.ecourts.gov.in/hcservices/ bail application for the above case before the same Court or beforethe other forums after lapse of time and thus, without any material,the observation has been made. Under such circumstances, the order isinfirm and has got to be set aside.5. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made. 6. As recorded above, the detaining authority, on scrutiny ofthe materials available, recorded the subjective satisfaction that itwas a fit case, where the detenu should be detained under Act 14 of1982 since his activities were prejudicial to the public order andhealth. Now, on a perusal of the materials available, the Court isof the opinion that the order is infirm and defective and hence, theorder cannot be sustained, as follows: (i) Firstly, among the grounds, the Court is able to seethat when there was a remand report and there was also aremand order pursuant to judicial custody, copies of whichwere served on the detenu, as found in page Nos.42 and 43 inthe booklet, they did not contain either the date of remandreport or the date of remand order. Once this lacunae isbrought to the notice of the Court, the learned AdditionalPublic Prosecutor came forward to state that both are thecourt orders and under such course, no clarification could becalled for from the sponsoring authority. This contentioncannot be accepted by the Court for the simple reason thatwhen there was a remand report and order of remand pursuant tothat and when the copies were served upon the detenu, it mustbe served the actual purpose; but in the instant case, so longit did not contain the date of remand report and also the dateof remand order, the detenu is kept in darkness and the reasongiven the learned Additional Public Prosecutor that therecould be no necessity to get a clarification, cannot be thereason. (ii) Apart from that, as rightly pointed out by thelearned counsel for the petitioner that the application forbail came to be dismissed by the Judicial Magistrate No.I,Dharmapuri in Crl.M.P.No.3839 of 2009 on 27.03.2009. While itwas dismissed so, even without any application filed orpending before any Criminal forum, the detaining authority hasobserved that there was a real possibility of the detenucoming out on bail by filing another application and thus, itcan be well settled that it was without any material, muchless, cogent material at all. It was only an expression ofimpression passed in the mind of the detaining authority. https://hcservices.ecourts.gov.in/hcservices/ This would suffice, under such circumstances, that the orderfound to be infirm and defective. 7. So far as the first ground as to the complainant appearingbefore the Court and also filing an affidavit that she was forced bythe police officers to give a complaint is concerned, in theconsidered opinion of the Court, it cannot be a reason, which couldbe taken in favour of the petitioner. However, the first tworeasons, as stated above, would suffice to set aside the order.Accordingly, this habeas corpus petition is allowed, settingaside the order of the second respondent. The detenu is directed tobe set at liberty forthwith unless his presence is required inconnection with any other case.gl Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1. The Secretary to Government, Home Prohibition and Excise Dept., Secretariat, Chennai-600 009.2. District Collector and District Magistrate, Dharmapuri District, Dharmapuri.3. The Superintendent, Central Prison, Salem.4. The Public Prosecutor, High Court, Madras.5. The Joint Secretary to Government public (Law & order) Fort St. George Chennai.9.H.C.P. No.1824 of 2009PUR(CO)EU 6.01.2009.