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C.DINAKARAN versus THE DISTRICT MAGISTRATE AND

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C.Dinakaran v. The District Magistrate and - HABEAS CORPUS PETITION (MD) No.108 OF 2007 [2007] RD-TN 1608 (25 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 25/04/2007

CORAM:

THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM

and

THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR

HABEAS CORPUS PETITION (MD) No.108 OF 2007

C.Dinakaran .. Petitioner vs.

1.The District Magistrate and

District Collector,

Sivagangai District, Sivagangai.

2.The State of Tamil Nadu,

rep., by its Secretary to Government,

Public (S.C.) Department,

Fort St.George, Chennai - 9.

3.The Union of India,

rep., by its Secretary to Government,

Ministry of Home Affairs & Department of

Internal Security, North Block,

New Delhi - 110001. .. Respondents Writ of Habeas Corpus Petition filed under Article 226 of the Constitution of India to call for the records pertaining to the proceedings of the 1st respondent made in order Crl.M.P.No.01/NSA/2007 dated 11.1.2007 and quash the same and set the petitioner at liberty.

For petitioner .. Mr.K.Jeganathan For 1st and 2nd Respondent .. Mr.Daniel Manoharan, Addl.Public Prosecutor For 3rd respondent .. Mr. B.Rajendran Central Government Standing Counsel

:ORDER



(Order of the Court was made by M.CHOCKALINGAM, J) Challenging the order of the first respondent against the detenu dated 11.1.2007 in Crl.M.P.No.01/NSA/2007 under the National Security Act, this application for Habeas Corpus Petition has been brought-forth by the petitioner.

2. Affidavit in support of the petition is perused. Court heard the learned counsel for the petitioner and also the learned Additional Public Prosecutor for the State.

3. On the strength of the recommendation made by the sponsoring authority, an order of detention came to be passed by the first respondent, which is the subject matter of challenge.

4. It could be seen from the available materials that on 29.11.2006 at about 18.00 hours, a Tata Sumo Car bearing Regn. No.TN 60 Y 3040 met with an accident near Kalpiravu Vilakku on Madurai - Ramanathapfuram National Highway Road, about 4 kms West of Manamadurai. The vehicle was loaded with 30 bags of high explosives. On the report of the Village Administrative Officer of Rajakampiram, a case came to registered in Crime No.657/06 u/s. 279, 337 IPC and 5 of Explosive Substances Act 1908 on the file of the Manamadurai Police Station. Considering the background of the case, it has been transferred to 'Q' Branch, CID for further investigation.

5. The accused Dinakaran was arrested on 30.11.2006 at 15.00 hours near Aanandhapuram bye-pass road by Inspector Thiru Mangaleswaran of Manamadurai PS in connection with the said case and was remanded to the Judicial custody. The remand period of the accused was extended upto 12.1.2007 by the Judicial Magistrate, Manamadurai. Now, he is in Central Prison, Madurai as remand prisoner.

6. During the course of investigation, it was found that during January, 2006, Dinakaran came in contact with one Balan, a Sri Lankan militant. Balan asked Dinakaran to arrange vehicle to transport explosives from Madurai to Ramanathapuram sea-shore for onward transport to Sri Lanka. Dinakaran accepted and arranged vehicle and driver Vijayakumar from Ramanathapuram and Muhaideen of his native village Irumeni to look after the safety transport of explosives to the sea-shore. Dinakaran knew that the explosives were high explosives and were going to the hands of Sri Lankan militants. Balan used to hand over the explosive bags to Dinakaran at Madurai and Dinakaran by using the services of Vijayakumar and Muhaideen, further transported it to Ramanathapuram Coast. He transported explosives several times during the year 2006 in the same manner to Ramanathapuram sea shore.

7. On 29.11.2006 at about 10.00 hours, Dinakaran informed Vijayakumar to start with the vehicle to Madurai to get a load of explosives from his store house located at Door No.3/51, Pandinagar 1st Street, Surveyor Colony, K.Pudur, Madurai. Accordingly, Vijayakumar took the vehicle Tata Sumo, TN-60-Y-3040 from Ramanathapuram and reached the said store house at about 16.00 hrs. They loaded 30 bags of explosives and one bag of polythene covers into the Tata Sumo, TN 60- Y-3040 from the store house. Dinakaran informed Muhaideen Yahoob to wait at Ramanathanpuram Bus Stand to receive the explosive vehicle for onward transport to Irumeni Sea Shore. Vijayakumar left Madurai for Ramanathapuram. Due to his rash and negligent driving, the vehicle met with an accident near Kalpiravu Vilakku Road in Madurai-Ramanathapuram NH Road at 18.00 hours. The vehicle was heavily damaged and he sustained injuries.

8. In such circumstances, the Village Administrative Officer, who found the vehicle, informed to the police and a case came to be registered and after enquiry, the detention order came to be passed against the detenu, who has brought-forth this Habeas Corpus Petition.

9. On the strength of the recommendation made by the sponsoring authority, the first respondent, after arriving at subjective satisfaction that the activities of the detenu were detrimental to the public order and society and also they were against the national security, passed the detention order. In view of the subjective satisfaction that there was compelling necessity to detain the detenu under Section 3(2) of the National Security Act 1980 (Central Act 65 of 1980), the detention order came to be passed.

10. Learned counsel for the petitioner has challenged the order of detention, inter alia, on three grounds-

(a) Firstly, as per Section 3 (5) of the National Security Act, a duty was caste upon the respondents 1 and 2 to report to the Central Government about passing of the order of detention within seven days. Insofar as this allegation, a perusal of the counter is to the effect that a report was forwarded but no date of despatch or the date of receipt by the third respondent is mentioned. Insofar as the counter filed by the third respondent, it is also very silent on this fact. At this juncture, it is pertinent to point out that while Section 3(5) of the National Security Act mandates that the report should be forwarded within seven days. The respondents 1 and 2 can not simply say that it was despatched but they should also ensure that it was received by the third respondent within the stipulated time. In the instant case, no material is placed before the Court that it was either despatched in time or it was received by the third respondent within the stipulated time. The Court is unable to receive satisfactory reply also from the third respondent. Under the circumstances, now, it can not be stated that the mandate of law under Section 3(5) of the National Security Act has been complied with. (b) Secondly, what is found in the order of detention is nothing but the verbatim reproduction of the averments made in the recommendation by the sponsoring authority. At this juncture, it is a matter of surprise to note that the first respondent has come with a counter stating that mere reproduction of the wordings found in the recommendation of the sponsoring authority in the course of the order of detention did not mean non-application of mind. The Court is unable to agree with the same. Law would expect the detaining authority to apply his mind while passing the order of detention. Mere verbatim reproduction of the recommendation of the sponsoring authority in the detention order would caste a doubt whether the detention authority has applied his mind. In such circumstance, the ruling relied on by the petitioner reported in (2006) 1 Supreme Court Cases (Cri) 61 ( Rajesh Vashdev Adnani v. State of Maharashtra and others, in the considered opinion of the Court is squarely applicable to the present case. Hence, it has got to be applied.

(c) Thirdly, while the earlier bail application filed by the petitioner was dismissed and while one bail application was pending, the detention order came to be passed saying that there was imminent possibility of coming out on bail. The Court has to point out that even before the disposal of the same or ascertaining that fact of imminent possibility of coming out, the detention order has been passed. If the apprehension of the detaining authority was true, the bail application can be opposed and in case bail is granted, challenge against that order in the higher

forum can be raised.

11. Under the circumstances, they did not satisfy the legal requirement in all these three grounds. Hence, the impugned detention order has got to be quashed and accordingly, quashed. The detenu is directed to be set at liberty forthwith unless he is required in connection with any other case. The Habeas Corpus Petition is allowed.

asvm

To

1.The District Magistrate and

District Collector,

Sivagangai District, Sivagangai.

2.The Secretary to Government,

The State of Tamil Nadu,

Public (S.C.) Department,

Fort St.George, Chennai - 9.

3.The Secretary to Government,

The Union of India,

Ministry of Home Affairs & Department of

Internal Security, North Block,

New Delhi - 110001.

4.The Additional Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.


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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