Uthirapathy v. The Secretary to Government Prohibition and Excise Department Fort St.George, Chennai –
Case at a glance
Outcome
Quashed
The order of detention is quashed
Provisions considered
- Constitution of India art. 226
- Tamil Nadu Act
- Indian Penal Code, 1860 ss. 147, 148, 149, 286, 302, 307, 324, 341
- Explosive Substances Act
Key paragraphs
- Para 44. We have waded through the entire records and it is evidentfrom the same that the detenu was arrayed as an accused in twocrimes, viz., the adverse case in Crime No.644 of 2005 for theoffences punishable under Sections 147, 148, 341, 302 and 149 IPCread…
- Para 55. It is trite law that when there is undue and long delaybetween the prejudicial activities and the passing of detentionorder, the Court has to scrutinise whether the detaining authorityhas satisfactorily examined such a delay and afforded a tenable andreasonable explanation as to why such…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.9.2007CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHIH.C.P.No.338 of 2007 Uthirapathy.. PetitionerVs1. The Secretary to Government Prohibition and Excise Department Fort St.George, Chennai – 9.
The District Magistrate and District Collector Villupuram District Villupuram. .. RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpus call for the records inC2/5553/2007 dated 9.2.2007 on the file of the Second Respondentand quash the same has illegal and consequently direct therespondents to produce the detenu Bakkiyaraj @ Parasuraman @Paramasivam aged about 24 years S/o. Uthirapathy, who nowconfined in Central Prison, Cuddalore before this Court and sethim at liberty. For Petitioner: Mr.K.GandhikumarFor Respondents :Mr.N.R.Elango Addl. Public ProsecutorORDER(Order of this Court was made by P.D.DINAKARAN,J.)The petitioner, who is the father of the detenu, Bakkiaraj @Parasuraman @ Paramasivam, aged about 24 years, who wasincarcerated by order dated 9.2.2007 of the second respondentunder Section 3(1) of the Tamil Nadu Prevention of DangerousActivities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, SlumGrabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982)branding him as Goonda, has preferred this writ petition forissue of a Writ of Habeas Corpus to call for the entire recordsin C2/5553/2007, dated 9.2.2007 on the file of the second https://hcservices.ecourts.gov.in/hcservices/ respondent, to quash the same and to direct the respondents toproduce the body and person of the detenu, now confined in the Central Prison, Cuddalore and set him at liberty.2.1.
The order of detention dated 9.2.2007 came to be passedbased on the ground case said to have taken place on 23.8.2006 atabout 11.15 hours. It is alleged that while one Arulraj alias Arulwas returning from Pondicherry to Bommaiarpalayam in his car, thedetenu, along with one Manikandan alias Dadha Manikandan, Rajendran, son of Ayyothi, Suresh and Jana alias Janarthanan armedwith country made bombs and Veecharuval, waylaid the car bythrowing country made bombs at the car, assaulted Arulraj aliasArul brutally with veecharuval over his head, face, neck and bothhands and caused instantaneous murder on the spot. Theneighbouring residents and the public were disturbed. The normallife came to a stand still. Public peace was disturbed and afeeling of insecurity prevailed in that area, and taking advantageof the confused situation, the detenu and other associates escapedfrom the scene in a car. The complainant is the son of Subramani, the car driver of the deceased Arulraj alias Arul.
A case wasregistered in Crime No.272/2006 under Sections 286, 324, 307 and302 of the Indian Penal Code read with Section 5 of the ExplosiveSubstances Act on the file of the Auroville Police Station. Thedetenu surrendered on 4.9.2006 before the Court of JudicialMagistrate, Thirukoilur.2.2. The second respondent, taking note of the above case as aground case and finding that there is an adverse case in CrimeNo.644 of 2005 on the file of the Kottakuppam Police Stationpending against the detenu for various offences punishable under Sections 147, 148, 341, 302 and 149 IPC read with 120(B) of the Indian Penal Code, having satisfied that there is a compellingnecessity to detain him in order to prevent him from indulging inthe activities which are prejudicial to the maintenance of publicorder, ordered his detention dubbing him as a Goonda.
Mr.K.Gandhikumar, learned counsel for the petitionerchallenges the impugned order of detention dated 9.2.2007 mainly onthe ground of delay of about 5 months in passing the order ofdetention, when the detenu surrendered before the learned JudicialMagistrate, Thirukoilur on 4.9.2006 itself.
We have waded through the entire records and it is evidentfrom the same that the detenu was arrayed as an accused in twocrimes, viz., the adverse case in Crime No.644 of 2005 for theoffences punishable under Sections 147, 148, 341, 302 and 149 IPCread with 120(B) of the Indian Penal Code, and the ground case in Crime No.272/2006 for the offences punishable under Sections 286,324, 307 and 302 of the Indian Penal Code read with Section 5 of https://hcservices.ecourts.gov.in/hcservices/ the Explosive Substances Act on the file of the Auroville PoliceStation. Even though the detenu surrendered on 4.9.2006 withrespect to the ground case and the charge sheet was filed on21.11.2006, the proposal for detention was sent by the SponsoringAuthority on 7.2.2007 and the order of detention was passed on9.2.2007, viz., after about 5 months from the date of surrender ofthe detenu. Thereafter, the detenu was acquitted in the adversecase on 26.3.2007. Therefore, it is apparent on the face of therecord that there is no live link between the last prejudicialactivity, the date of surrender of the detenu, the proposed datefor detention, and the date of passing of the detention, and in theabsence of live link the purpose for which the order of detentionis snapped, in our considered opinion, becomes a stale one.
Operative part
It is trite law that when there is undue and long delaybetween the prejudicial activities and the passing of detentionorder, the Court has to scrutinise whether the detaining authorityhas satisfactorily examined such a delay and afforded a tenable andreasonable explanation as to why such a delay has occasioned, whencalled upon to answer and further the Court has to investigatewhether the casual connection has been broken in the circumstancesof each case. Further, when such delay is unsatisfactory andunexplained, the same would throw considerable doubt on thegenuineness of the subjective satisfaction of the detainingauthority leading to a legitimate inference that the detainingauthority was not really and genuinely satisfied as regards thenecessity for detaining the detenu with a view to prevent him fromacting in a prejudicial manner. In the instant case, the delay of about 5 months in passingthe order of detention, even though the detenu surrendered on4.9.2006 has not been explained satisfactorily. Hence, we are ofthe considered opinion that the said delay vitiates the impugnedorder of detention. We, therefore, allow this habeas corpuspetition. The order of detention is quashed. The detenu isdirected to be released forthwith, unless he is required inconnection with any other case. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sasi https://hcservices.ecourts.gov.in/hcservices/ To:1. The Secretary to Government Prohibition and Excise Department Fort St.George, Chennai – 9.2. The District Magistrate and District Collector Villupuram District Villupuram.3. The Public Prosecutor High Court, Madras.4. The Superintendent of Central Prison, Cuddalore.5. The Joint Secretary to GovernmentPublic (Law and order)Fort St. George, Chennai-9.H.C.P.No.338 of 2007JSK (CO)kk 25/9
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: The order of detention is quashed
Which statutory provisions did this judgment involve?
Constitution of India — art. 226; Tamil Nadu Act; Indian Penal Code, 1860 — ss. 147, 148, 149, 286, 302, 307, 324, 341; Explosive Substances Act.
Which court decided this case, and when?
Madras High Court, on 17 Sep 2007. The bench was P D DINAKARAN.
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.