Jayalakshmi v. The Secretary to the Government, Prohibition and Excise Department, Fort St.George, Chennai – 600 009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.06.2008 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE S.PALANIVELUH.C.P.NO.97 OF 2008 Jayalakshmi.. PetitionerVs.

The Secretary to the Government, Prohibition and Excise Department, Fort St.George, Chennai – 600 009.

The District Magistrate and District Collector, Nagappattinam District, Nagappattinam... Respondents This Habeas corpus petition has been preferred under Article226 of the Constitution of India praying for the issue of a writof habeas corpus to call for the records relating to the detentionorder passed by the second respondent herein made inC.O.C.No.69/2007 dated 19.12.2007 and quash the same and directthe respondents to produce the body of the detenu Thiru. Bhagavathi@ Singaravelu, son of Baskar @ Thiyagarajan, who is now detainedin the Central Prison, at Thiruchirappalli, before the court andset him at liberty. For Petitioner : Mr.N.Doraisami for Mr.T.P.SenthilkumarFor Respondents: Mr.Babu Muthu Meeran, APP ORDER(The order of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to an order of the second respondent madein C.O.C.No.69/2007 dated 19.12.2007 whereby one Bhagavathi @Singaravelu, the son of the petitioner was termed as 'Goonda' anddetained under the provisions of Tamil Nadu Act 14 of 1982. https://hcservices.ecourts.gov.in/hcservices/

2. The affidavit filed in support of the petition is perused. The Court heard the learned counsel on either side. The orderunder challenge along with the grounds are also perused.

Concededly, the order of detention came to be passed bythe second respondent, Detaining Authority on the strength of therecommendation made by the Sponsoring Authority along with thematerials pertaining to Crime No.100/2007 registered by Keelaiyur Police Station for the offence under Sections 147, 148,302, 120(b) I.P.C. @ 148, 120, 120(b), 450, 342, 302 r/w 109I.P.C. as an adverse case and also the materials pertaining to Crime No.524/2007 registered by Velankanni Police Station under Section 294(b), 385, 506(ii) I.P.C. and Section 3(1) of the TamilNadu Property (Prevention of Damages and Loss) Act 1992 and Section 25(1)(a) of Indian Arms Act 1959 as ground case and othermaterials.

The Detaining Authority has arrived at subjectivesatisfaction, on scrutiny of the materials available, that theactivities of the detenu were prejudicial to the maintenance ofpublic order and peace and hence he has got to be termed as Goonda. Further, in order to prevent him from indulging in suchactivities in future, a necessity arose to detain him under theprovisions of the Tamil Nadu Act 14 of 1982 and hence an orderof detention was passed. The said order is the subject matter ofchallenge before this court.

Advancing arguments in support of the petition, learnedcounsel for the petitioner would submit that in the instant case, the detention order came to be passed by the detaining authoritywhen materials were supplied in respect of one ground case and oneadverse case. The ground case was registered in Crime No.524/2007under sections 294(b), 385, 506(ii) I.P.C. and Section 3(1) ofthe Tamil Nadu Property (Prevention of Damages and Loss) Act 1992and Section 25(1)(a) of Indian Arms Act 1959. The arrest was madeon 11.12.2007. The detenu was sent to remand as per the arrestcard on 11.12.2007 but the order of judicial remand was made bythe Judicial Magistrate concerned as could be seen at page 41 ofthe booklet is only on 12.12.2007 and thus, there was discrepancyand the Detaining Authority before passing the detention ordershould have called for clarification but failed to do so. Arepresentation was made on 24.12.2007 but the order of rejectionwas served upon the detenu only on 3.3.2008 after long lapse oftime. There was inordinate delay which was unexplained. Addedfurther learned counsel that after arrest, as per the legalmandate, the close relatives of the detenu should be informed butin the instant case, no one was informed about the factum ofarrest which causes infirmity to the detention order. Hence, theorder of detention has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/

The Court heard the learned counsel appearing for the State on the above contentions and paid its anxious considerationon the submissions made. After doing so, the Court is of theconsidered opinion that the order of detention has got to bequashed for the following reasons.

It is not in controversy that the order of detention cameto be passed on 19.12.2007 on the strength of the recommendationmade by the sponsoring authority on one ground case in CrimeNo.524/2007 as referred to above and one adverse case. As could beseen from page 32 booklet, he was arrested on 11.12.2007 andalso produced before the Court. As per the remand order made bythe Judicial Magistrate concerned, it seen that the remand wasmade on 12.12.2007. There is discrepancy. Under suchcircumstances, clarification should have been called for by thedetaining authority but he has not done so. Secondly, the mandatelaw is that when a person is arrested in connection with criminalcase, one of his relative should be informed about the cause ofarrest. In the instant case, no material is placed before the Court that this legal requirement is satisfied. It is seen thatone Samarasam was informed but nowhere it is stated that the saidSamarasam is the relative of the detenu.

As far as the third contention of the learned counsel forthe petitioner, admittedly a representation was made on24.12.2007 but the order of rejection was served only on3.3.2008. According to the available materials placed in thehands of the Court by the respondent side, it is seen that therepresentation was received on 26.12.2007 by the authority andremarks were called on 27.12.2007 and the reminder dated10.1.2008 was actually received on 21.2.2008. Thus, there was along delay of nearly about 40 days. This long delay remainsunexplained. So long as the delay is unexplained, the delay isunreasonable which would cause prejudice to the arrest of thedetenu.

Under these circumstances, the Court is of the consideredopinion that it is a case where the order of detention has got tobe set aside.

Accordingly, the detention order is set aside. The HabeasCorpus Petition is allowed. The detenu is directed to be set atliberty forthwith unless his presence is required in connectionwith any other case.vsi Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to the Government, Prohibition and Excise Department, Fort St.George, Chennai – 600 009.2. The District Magistrate and District Collector, Nagappattinam District, Nagappattinam. 3. The Public Prosecutor, High Court, Madras. 4. The Superintendent, Central Prison, Tiruchirapalli5. The Joint Secretary to GovernmentPublic (Law and Order),Fort St. George, Chennai.scd (co)dv/8.7.H.C.P.NO.97 OF 2008