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KHADER versus THE SECRETARY TO GOVERNMENT

High Court of Madras

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Khader v. The Secretary to Government - H.C.P. No. 406 of 2005 [2005] RD-TN 569 (10 August 2005)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 10/08/2005

Coram

The Hon'ble Mr. Justice P. SATHASIVAM

and

The Hon'ble Mr. Justice AR. RAMALINGAM

H.C.P. No. 406 of 2005

Khader,

S/o Ibrahim. .. Petitioner.

-Vs-

1. The Secretary to Government,

Prohibition and Excise Department,

Fort St. George, Chennai-9.

2. The Commissioner of Police,

Greater Chennai, Egmore,

Chennai-8. .. Respondents. Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Habeas Corpus, directing the respondents to produce the detenu viz., Khader, son of Ibrahim, who is now detained in Central Prison, Chennai in pursuance of the detention order passed by the second respondent on 7-3-2005 in Memo No. 75/BDFGISV/20 05 before this Court, call for records, set aside the order and set the detenu at liberty forthwith. For petitioner:- Mr. S. Swamidoss Manokaran.

For respondents:- Mr. Abudukumar Rajarathinam, Govt., Advocate (Crl. Side)

:ORDER



(Order of Court was made by P. Sathasivam, J.,) The petitioner by name Khader who was detained as Goonda by the impugned proceedings dated 07-03-2005 under Tamil Nadu Act 14 of 1982, challenges the same in this petition.

2. Learned counsel appearing for the petitioner after taking us through the grounds of detention and all other connected materials, has raised the following contentions:

The detaining authority while passing the order of detention, has not considered the alleged adverse case No.3 which is a graver offence than the ground case alleged to have taken place on 2-2-2005 ; (2) Though the detaining authority has considered that the detenu is in remand in respect of crime Nos. 195/2005 and 202/2005 and 2-3/20 05, he was not possessed the order of remand passed by the concerned Magistrate. In the absence of such order/orders and clarification from sponsoring authority, the detention order is liable to be quashed. Though the detaining authority has referred to the confessional statement of Siraj, the same was not furnished. Even after the direction of the Government, the detaining authority has not furnished copy of the same which vitiates the detention order. There was delay in consideration of the representation of the detenu.

3. The learned Government Advocate met all the points by placing relevant materials.

4. Coming to the first contention, it is seen from the grounds of detention, the first two adverse cases relate to an offence under Section 379 I.P.C., said to have taken place even on 31-10-2004 and 1-2-2005 respectively and the third adverse case relates to an offence under Section 392 I.P.C. It is not in dispute that the cases relating to offences under sections 379 and 392 I.P.C. are triable by a Magistrate. On the other hand, the ground case which is said to have taken place on 2-2-2005 relates to offences under Sections 341 , 336, 427, 397 and 506 (2) I.P.C.. Among these offences, the offence under section 397 I.P.C. is a graver offence and exclusively triable by Sessions Judge. In such a circumstance, in the light of the materials found in the grounds of detention, we are unable to accept the argument of the learned counsel for the petitioner.

5. Coming to the second contention, it is true that in para 4 of the grounds of detention, the detaining authority has stated that "I am aware that Thiru Khader is in remand in F.1 Chindatripet Police Station Crime Nos. 195/2005, 202/2005 and 203/2005 and has moved a bail application before the Principal Session Court, Chennai in Crl.M.P.No. 2009/2005 in F.1 Chindatripet P.S. Crime No. 203/2005 and the same is pending...." It is the claim of the learned counsel for the petitioner that though the petitioner was furnished with remand order in respect of Crime No. 203/2005 on the file of F.1 Chindatripet Police Station, no remand order was either produced or supplied to the detenu in respect of Crime No.195/2005 and 202/2005 on the file of the same Police Station. The perusal of paper books supplied to the detenu shows that copy of the remand order in Cr.No. 203/2005 alone was supplied. However, the initial order of remand in Crime No.1 95/2005 and 202/2005 were supplied to the detenu, though not the remand extension (vide pages 173, 181, 183, and 185 of the paper book). Inasmuch as the detenu was in remand in all the 3 cases and the Crime No. 203/2005 relates to ground case, the remand order/remand extension order were duly supplied to the detenu. The detaining authority was aware of the relevant fact that on the date of the passing of the detention order, namely, 7-3-2005, the detenu was in remand. Merely because the detenu was not supplied with copy of the remand extension order in the other two cases, it cannot be claimed that he lost his right to make representation to the authority. We are satisfied that there is no flaw in the procedure that was followed by the detaining authority.

6. Coming to the non furnishing of the statement of Suresh, a co-accused, learned Government Advocate has contended that the confessional statement of Suresh, co-accused has not been relied on by the detaining authority. On the other hand, the detaining authority relied on the confessional statement of the detenu itself. In such a circumstance, the claim of the petitioner is liable to be rejected.

7. Learned counsel for the petitioner has contended that based on the representation of the detenu dated 5-4-2005, the Government in their letter dated 22-4-2005, has directed the sponsoring authority to supply copy of the statement of Suresh, the same has not been supplied. For this, he relied on a decision of this Court in P. MUTHUSWAMY v. STATE, REPRESENTED BY THE SECRETARY TO GOVERNMENT, ETC., AND ANOTHER, reported in 2001 L.W. Crimine 27 wherein, based on the direction of the Government for supply of certain documents, in the absence of compliance of the same by the detaining authority, the Division Bench quashed the detention order. We have carefully perused the said decision. In that case, based on the representation of the detenu, the Government have specifically directed the detaining authority to supply to the detenu the document sought for. Since the same was not complied with by the detaining authority, the Division Bench has concluded that the detention order is vitiated. In our case, in the reply dated 22-4-2005, the Government has informed " nkYk; jpU Rnuc;& vd;gtupd; thf;FK:yj;jpd; efy; fhty; Jiw Mizauhy; tH';fg;gLk;........" After observing so, ultimately, the Government rejected the representation of the detenu dated 6-4-2005. First of all, as rightly argued by the learned Government Advocate, the detaining authority has not relied on the confessional statement of Suresh and for passing the detention order, the detaining authority has taken note of the confessional statement of the detenu alone. Secondly, there is no positive direction by the Government for supply of the said document. In such a circumstance, the decision relied on by the learned counsel is not applicable and helpful to the case on hand.

8. Coming to the last contention, namely, delay in disposal of the representation, the particulars furnished by the learned Government Advocate shows that representation of the detenu was received by the Government on 7-4-2005, remarks were called for on 8-4-20 05, remarks received on 15-4-2005, file submitted on 18-4-2005, Deputy Secretary dealt with the same on 18-4-2005, Minister for Prohibition passed an order on 19-4-2005, rejection letter was prepared on 22-4-2005, and it was served on the detenu on 23-4-2005. Though there was delay between 8-4-2005 and 15-4-2005, the particulars furnished by the Collectorate show that the representation was received from the Government on 11-4-2005, remarks were called for from the sponsoring authority on 12-4-2005, remarks were received from the sponsoring authority on the same day i.e., on 12-4- 2005 and report was sent to the Government on 13-4-2005, the remarks were received by the Government on 15-4-2005. It is not in dispute that 14-4-2005 is a holiday due to Tamil New Year. Perusal of all the details show that there is no undue delay or in disposal of the representation of the detenu. Accordingly, we reject the said contention also.

In the light of what is stated above, we do not find any valid ground for interference; accordingly the petition fails and the same is dismissed. R.B.

Index:- Yes.

Internet:- Yes.

To:-

1. The Secretary to Government,

Prohibition and Excise Department,

Fort St. George, Chennai-9.

2. The Commissioner of Police,

Greater Chennai, Egmore,

Chennai-8.

3. The Public Prosecutor, High Court, Madras.

4. The Superintendent, Central Prison, Chennai. 


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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