P. PalanisamyS/o. Pandurangam v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05-01-2007CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE S. RAJESWARANHABEAS CORPUS PETITION NO.960 OF 2006P. PalanisamyS/o. Pandurangam.. PetitionerVs.1. The State of Tamil Nadu, Rep. by its Secretary to Govt., Prohibition & Excise Department, Fort St. George, Chennai 600 009.2. The Commissioner of Police, Salem City, Salem District... RespondentsPetition filed under Article 226 of the Constitution of India forthe issuance of Writ of Habeas Corpus to call for the records inC.M.P.No.18/Goonda/Salem City/2006 dated 3.8.2006 passed by the secondrespondent and quash the same as illegal and direct the respondents toproduce the detenu Muthu, son of Palanisamy, now confined in CentralPrison, Salem, before this Court and set him at liberty.For Petitioner: Mr.R. SankarasubbuFor Respondents: Mr.M. Babu Muthu Meeran Addl. Public Prosecutor- - -J U D G M E N TP.K. MISRA, JThis Habeas Corpus Petition has been filed by the father ofthe detenu, who has been detained under Act 14/1982, by virtue of theorder passed by the second respondent, namely, the Commissioner ofPolice, Salem district, dated 3.8.2006, which has been subsequently https://hcservices.ecourts.gov.in/hcservices/ confirmed by the first respondent, namely, the State of Tamil Nadu.2. The detention is based on five adverse cases and oneground case. Adverse cases had been registered under Sections 147,148, 368, 341 and 324 IPC in Cr.No.980 of 2001, under Section 379 IPCin Cr.No.246 of 2005, under Section 302 IPC in Cr.No.538 of 2005,under Section 379 IPC in Cr.No.1298 of 2006, under Section 379 IPC inCr.No.1305 of 2006 and the ground case is registered under Section 392r/w.397 IPC in Cr.No.1306 of 2006.3. The petitioner has challenged the order of detentionmainly on the following grounds :-(1) The arrest of the detenu was not informed to the familymembers and therefore there was violation of the ratio of the decisionof the Supreme Court reported in AIR 1997 SC 610 (D.K. BASU v. STATEOF WEST BENGAL).(2) The detenu was in custody in connection with several casesand bail application had not been filed and, therefore, there was nopossibility of the detenu coming out of jail and there could not havebeen any necessity of preventive detention.(3) The detention order was passed on the basis of the groundcase in Cr.No.1306/2006, but he had been remanded in connection withCr.Nos.1298/2006 and 1305/2006 and the detaining authority hasfurnished remand order only in Cr.No.1306 of 2006 and the remand orderrelating to other two cases have not been furnished inspite of therequest made in the representation dated 2.9.2006. 4. So far as the first submission is concerned, it has beenindicated in the counter affidavit that the fact that detenu wasarrested was informed to the father of the detenu and copy of thearrest memo was furnished. This factual assertion on the part of therespondents has not been further denied. Therefore, we are unable toaccept the submission made on behalf of the petitioner.5. So far as the second submission is concerned, it is nodoubt true that no bail application has been filed on behalf of thedetenu in any of the three cases in connection with which he had beenremanded by the Magistrate. However, the detaining authority, on thebasis of the materials on record had came to the conclusion that thereis every possibility of bail petition being filed and the detenu beingreleased on bail after a lapse of sometime as in similar cases thepersons are being released on bail either by the Sessions Court or bythe higher Courts. It cannot be said that the aforesaid subjectivesatisfaction recorded by the detaining authority is without any basisand it is therefore difficult for the court while dealing with theHabeas Corpus Petition to come to any different conclusion. https://hcservices.ecourts.gov.in/hcservices/

6. The other contention of the petitioner is to the effectthat even though copy of the remand order in connection withCr.No.1306 of 2006 had been furnished, copies of the remand orders inconnection with Cr.Nos.1298 and 1305 of 2006 had not been furnishedinspite of the request made in the representation dated 2.9.2006.7. So far as this aspect is concerned, in the counteraffidavit filed on behalf of the second respondent, it has been merelyindicated,"... The detaining authority had not relied the remandorder in the adverse case and hence the remand order ofthose cases were not furnished in the booklet. However,those remand order were forwarded to the Government for thepurpose of furnishing it to the petitioner as requested inhis representation dated 2.9.2006."8. In paragraph 3 of the grounds of detention, it has beenindicated that the detenu Muthu was arrested in the ground case. Itwas further indicated:"3. ... During investigation it is revealed that he wasinvolved in Hathampatti P.S. Cr.No.1298/2006, 1305/2006u/s.379 IPC and hence he was arrested in these cases also.During investigation, the accused Tr. Jagadeesan wasinvolved in Hasthampatty P.S. Cr.No.1299/2006, u/s.379 IPCand Ammapet P.S. Cr.No.1438/2006, u/s.379 IPC and thereforehe was arrested in these cases also. The three accused wereproduced before the Judicial Magistrate No.3, Salem on24.7.2006 and remanded to judicial custody at CentralPrison, Salem till 7.8.2006. The Judicial Magistrate No.3,Salem has recorded in the remand order that when the accusedTr. Muthu was produced before him he has no complaints. Inthis case the recovered articles were sent to the courtunder form 95. The case is under investigation."9. A fair reading of the aforesaid grounds prima facieindicate as if the detaining authority has relied upon the remandorders in all the cases. Therefore, there is necessity to furnishcopy of the remand order. However, even assuming that the detainingauthority had not specifically relied upon the remand orders in thosetwo cases, in connection with which the detenu was also remanded, aspecific request had been made in the representation dated 2.9.2006for furnishing copies of the said remand orders. It is obvious thatthe detenu wanted to have copy of all the relevant documents with aview to make a proper representation. As a matter of fact, thedetaining authority in his counter has indicated that those remandorders had been forwarded to the Government for the purpose of servingthem as requested in the representation dated 2.9.2006. Once thedetaining authority had forwarded those documents to the Governmentsfor supplying to the detenu, it was expected of the Government to https://hcservices.ecourts.gov.in/hcservices/ serve such copies, particularly when a specific request had been madein the representation.10. In the present case, the detaining authority himself hasindicated that since in the representation a specific request has beenmade to furnish copies of the remand order, such copies have beenforwarded to the Government for serving on the detenu and yet thosecopies had not been served.11. In our considered opinion, failure on the part of theGovernment to furnish copies of the remand orders inspite of thespecific request made in representation, in the peculiar facts andcircumstances of the case, has the effect of vitiating the furtherdetention of the detenu.12. For the aforesaid reason, the Habeas Corpus Petition isallowed and the order of detention is quashed. The detenu is directedto be released forthwith unless his presence is required in connectionwith any other case. dpkSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary to Govt.of Tamilnadu, Prohibition & Excise Department, Fort St. George, Chennai 600 009.2. The Commissioner of Police, Salem City, Salem District. https://hcservices.ecourts.gov.in/hcservices/

3. The Public Prosecutor, High Court, Madras4. The Superintendent of Central Prison, Salem.5. The Joint Secretary to Govt. Public (Law & Order) Dept. Fort St. George, Chennai-9.JUDGMENT IN HCP.960/2006gb(co)bp/20.105-01-2007