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PAPPATHI versus THE DISTRICT COLLECTOR AND

High Court of Madras

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Pappathi v. The District Collector and - H.C.P.(MD) No.73 of 2007 [2007] RD-TN 1269 (3 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 03/04/2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

H.C.P.(MD) No.73 of 2007

Pappathi .. Petitioner

vs

1.The District Collector and

District Magistrate,

Tirunelveli District

Tirunelveli

2. The Secretary to Government

of Tamil Nadu

Prohibition and Excise Department

Secretariat, Chennai 600 009.

3. The Inspector of Police

Thalayoothu Police Station

Thalayoothu

Tirunelveli District .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying to issue a writ of habeas corpus directing the respondents to produce the body of detenu namely Sankar @ Sankaranarayanan @ Pura before this Court who is now detained in the Central Prison, Palayamkottai, pursuant to the detention order passed by the first respondent in M.H.S. Confdl. No.31/2006 dated 1.12.2006 and to call for the records and quash the same and release the detenu at liberty forthwith.

For Petitioner : Mr.N.Mohideen Basha For Respondents : Mr.Daniel Manoharan

Additional Public Prosecutor :ORDER



Challenging an order of detention made by the first respondent, the detaining authority, dated 1.12.2006, the petitioner, the mother of the detenu, has brought forth this petition.

2.The order under challenge is perused. The Court heard the learned Counsel for the petitioner and also the learned Additional Pubic Prosecutor for the respondents.

3.The learned Counsel in his sincere attempt of assailing the order, urged the following grounds.

(i) There was a delay of 8 days when the remarks were called for and they were received, which remained unexplained.

(ii) The sponsoring authority placed materials pertaining to a ground case and two adverse cases. The ground case was registered by Thalayoothu Police Station in Crime No.368/2006 under Sections 294(b), 332, 307 and 506(ii) of I.P.C. for an occurrence that took place on 24.11.2006. As regards two adverse cases, one was registered by Tirunelveli Town Police Station in Crime No.944/2006 under Sections 147, 148, 341, 294(b) and 506(ii) of I.P.C. for an occurrence that took place on 21.8.2006 and the other was registered by Thalayoothu Police Station in Crime No.363/2006 under Sections 342, 394, 387 and 468 of I.P.C. for an occurrence that took place on 13.11.2006. In the instant case, as found in paragraph 6 of the order of detention, the authority has taken into consideration that there is imminent possibility of the detenu coming out on bail. He has referred to the ground case which is in Crime No.368/2006 on the file of Thalayoothu Police Station referred to above, but has not taken into account the second adverse case in Crime No.363/2006 under Sections 342, 394, 387 and 468 of I.P.C. The detaining authority passed the order that there was imminent possibility of the detenu coming out on bail; but, he has failed to take into account the second adverse case referred to above. Even if the detenu comes out on bail in Crime No.368/2006, whether he could come out on bail in Crime No.363/2006 was not taken note of.

(iii) The detaining authority has simply pointed out that there is imminent possibility of the detenu coming out on bail. Even at the time of the recommendation made by the sponsoring authority or when the order was passed by the detaining authority, no bail application was pending. Thus, it was only an expression of a statement that there is imminent possibility of the detenu coming out on bail. While there was no bail application pending before a Court of law, there was no possibility for the detaining authority to ascertain the situation whether he could come out on bail. Thus, this would indicate the non- application of mind. On these grounds, the order has got to be set aside.

4.The Court heard the learned Additional Public Prosecutor on the above contentions. The Court made a thorough scrutiny of the available materials.

5.As could be seen from the materials and as pointed out by the learned Counsel for the petitioner, on the strength of one ground case and two adverse cases, an order came to be passed by the detaining authority on 1.12.2006. The proforma filed by the State, is looked into, from which it could be seen that the remarks were called for on 12.2.2007; but, it was received on 20.2.2007. There was an interval of 8 days. According to the State, there were two intervening holidays. Except this, there were six working days; but, the State has no explanation to offer. Under the circumstances, this delay, in the opinion of this Court, has caused prejudice to the interest of the detenu.

6.Apart from the above, as rightly pointed out by the learned Counsel for the petitioner, out of these three cases, the second adverse case seems to be graver than the ground case itself, and the detaining authority has pointed out that there is imminent possibility of the detenu coming out on bail. It is also pertinent to point out that as admitted by the State, there was no bail application pending either at the time when the sponsoring authority made the recommendation, or at the time when the order of detention was passed by the detaining authority. Therefore, it is simply an expression made. While no bail application was pending, it cannot be stated that the detaining authority could have arrived at a subjective satisfaction. That apart, without appraisement of the situation, he has also referred to only the ground case which is not as grave as second adverse case. For these reasons, this Court is of the view that the order is infirm, and hence, it has got to be set aside.

7.In the result, this habeas corpus petition is allowed setting aside the order of the first respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in any other case. To:

1.The District Collector and

District Magistrate,

Tirunelveli District

Tirunelveli

2.The Secretary to Government

of Tamil Nadu

Prohibition and Excise Department

Secretariat, Chennai 600 009.

3.The Inspector of Police

Thalayoothu Police Station

Thalayoothu

Tirunelveli District

4.The Public Prosecutor

Madurai Bench of Madras High Court


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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