V.Srinivasan @ Sami @ Elumalai v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 18.04.2005Coram:-The Hon'ble Mr. Justice P.SATHASIVAMandThe Hon'ble Mr. Justice S.K.KRISHNANH.C.P. No.1308 of 2004V.Srinivasan @ Sami @ Elumalai... Petitionervs.

The State of Tamilnadu rep. by the Secretary to the Government, Public (SC) Dept.,Fort St. George, Chennai 600 009.

The Union of India, rep. by the Secretary to the Government, Ministry of Finance, Department Of Revenue, New Delhi.

The Superintendent of Central Prison, Central Prison, Salem.... RespondentsPetition under Article 226 of the Constitution of India for the issuance of a writ of habeas corpus to call for the records relating to the detention order in G.O.No.S.R.1/528-10/2004 dated24.05.2004 passed by the first respondent herein and quash the same and direct the respondent to produce the body of the person of thedetenu namely V.Srinivasan @ Sami @ Elumalai son of Venkataswamibefore this Hon'ble Court, now detained under Sec.3(1)(ii) of theCOFEPOSA Act in the Central Prison, Salem and set him at liberty. For Petitioner: Mr.S.PalanikumarFor R-1 & R-3: Mr.A.Kandasamy Additional Public Prosecutor. For R-2: Mrs. Vanathi Srinivasan, Addl. Central Govt. Standing Counsel. . . . . https://hcservices.ecourts.gov.in/hcservices/

O R D E R (Order of the Court was made by P.SATHASIVAM, J.)The detenu by name V.Srinivasan @ Sami @ Elumalai, who was detained by the impugned detention order, dated 24.5.2004,passed under Section 3(1)(ii) of the Conservation of ForeignExchange and Prevention of Smuggling Activities Act, 1974 (CentralAct 52 of 1974), challenges the same in this Habeas CorpusPetition.2. Heard learned Counsel for petitioner, learnedAdditional Public Prosecutor for R-1 and R-3 and learned AdditionalCentral Government Standing Counsel for R-2.3. Though several contentions have been raised questioning the impugned order of detention, learned counsel appearing for the Petitioner at the foremost contended that the detention order is liable to be quashed on the ground of non-application of mind on the part of the Detaining Authority.

While elaborating the said contention, learned counsel has brought to our notice that though the Detaining Authority was aware of the fact that the detenu has filed a bail petition on17.05.2004 before the Chief Judicial Magistrate, Namakkal, in paragraph No.5 of the grounds of detention, the Detaining Authorityhas proceeded, ignoring the fact of pendency of the bail petition dated 17.5.2004, and observed that the detenu is entitled to file abail petition and that there is likelihood of he being released on bail or statutory bail. As rightly pointed out, a perusal of theaverments made in Paragraph No.1(xxxiv) of the grounds of detention clearly shows the pendency of bail petition dated 17.5.2004 before the Additional Chief Metropolitan Magistrate, Namakkal. It is notin dispute that the detention order was passed on 24.05.2004.However, in paragraph No.5 of the grounds of detention, the Detaining Authority has stated that since the detenu was a remand prisoner and his judicial remand is only for the period specified in law, he is entitled to file a bail petition and there is likelihood of he being released on bail or statutory bail. Asrightly pointed out, the said conclusion is contrary to the statement made in the earlier paragraph, viz., paragraph No.1(xxxiv) of the grounds of detention, and this material aspect of the matter has not been taken note of by the Detaining Authoritywhile arriving at the subjective satisfaction.

In this regard, learned counsel for the petitioner has brought to our notice a decision rendered by us in HCP No.1053 of2004, dated 14.3.2005. In that case, while considering similar factual details, after holding that the detention order is https://hcservices.ecourts.gov.in/hcservices/ vitiated inasmuch as the Detaining Authority has not considered the relevant fact, namely, pendency of bail petition on the date on which the detention order was passed, we quashed the order of detention on the ground of non-application of mind. The said decision is applicable to the case on hand.