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IRUDHAYAMARY versus THE STATE OF TAMIL NADU

High Court of Madras

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Irudhayamary v. The State of Tamil Nadu - H.C.P.(MD) No.16 of 2007 [2007] RD-TN 920 (13 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 13/03/2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

H.C.P.(MD) No.16 of 2007

Irudhayamary .. Petitioner vs

1.The State of Tamil Nadu

rep. by Secretary to Government

Prohibition and Excise Department

Fort St. George

Chennai 9.

2.The Commissioner of Police

Tiruchirappalli City

Tiruchirappalli

3.The Inspector of Police

Contonment Police Station

Trichy .. Respondents

Habeas corpus petition filed under Article 226 of the Constitution of India praying to issue a writ of habeas corpus calling for the records relating to the detention order passed by the 2nd respondent in C.P.O/T.C/I.S./D.O. No.25/2006 dated 5.8.2006 and to quash the same and direct the respondents to produce the body of the detenu Suresh @ Pattarai Suresh, S/o. Sebastian, before this Court and set him at liberty, now detained at Central Prison, Trichy. For Petitioner : Mr.S.Deenadhayalan For Respondents : Mr.Daniel Manoharan

Additional Public Prosecutor :ORDER



(Order of the Court was made by M.CHOCKALINGAM, J.) Challenging an order of detention passed by the second respondent, the mother of the detenu Suresh has brought forth this habeas corpus petition invoking the writ jurisdiction of this Court.

2.The affidavit in support of the petition is perused, and the order under challenge is also perused. The Court heard the learned Counsel for the petitioner.

3.As could be seen from the materials available, a recommendation was placed by the sponsoring authority stating that there was one ground case registered by Cantonment Police Station in Crime No.894/2006 under Sections 387 and 506(ii) of I.P.C., and there were three adverse cases, first one registered by the same Police Station in Crime No.599/2006 under Sec.399 of I.P.C., second one by Fort Police Station in Crime No.743/2006 under Sections 399 read with 397, 353 and 307 of I.P.C. and Sec.25(1)(A) of Arms Act and the third one by Thiruverumbur Police Station in Crime No.413/2006 under Sections 120(b), 353 and 506(ii) of I.P.C. read with Sections 4 and 5 of Explosive Substance Act, 1908. The detaining authority after perusal of the materials, arrived at a subjective satisfaction to pass an order of detention, that was passed on 5.8.2006, which is the subject matter of challenge before this Court.

4.Advancing the arguments on behalf of the petitioner, the learned Counsel in his sincere attempt of assailing the order, has brought forth two grounds. Firstly, the memo filed by the Inspector of Police concerned seeking police custody, and the orders passed thereon in respect of Crime No.894/2006, were not placed before the detaining authority. Secondly, an order was passed by the Judicial Magistrate concerned extending the remand in Crime No.599 of 2006; but, actually, it should have been passed in Crime No.894/2006, and the said order has been placed before the detaining authority. The learned Counsel would further submit that in the instant case, there is non-application of mind, and hence, the order has got to be set aside.

5.The Court heard the learned Additional Public Prosecutor on the above contentions.

6.Firstly, the ground case, as could be seen, was actually registered by the third respondent police in Crime No.894 of 2006 under Sections 387 and 506(ii) of I.P.C. So far as the second adverse case in Crime No.743/2006 was concerned, the detenu surrendered before the Judicial Magistrate, Perambalur, on 18.7.2006 and remanded to judicial custody. The Inspector of Police, the third respondent herein, took him under police custody on 21.7.2006 and recorded the confessional statement given by him. The detenu was produced before the Judicial Magistrate No.II, Tiruchirappalli, on 24.7.2006 after the police custody. Thus, it is an admitted position that the detenu surrendered before the Judicial Magistrate, Perambalur, in Crime No.743/2006, and he was also remanded to judicial custody. The Inspector of Police, the third respondent herein, filed a memo before that Court seeking police custody on 21.7.2006, and the police custody was also ordered, and it was taken. He was produced again after the police custody for a period of three days, on 24.7.2006. While the police custody was in force, a confessional statement was also recorded, as could be seen from the materials placed before the detaining authority. Now, at this juncture, it remains to be stated that when a memo for police custody was filed, and an order was also passed by the Judicial Magistrate for the police custody on 21.7.2006, the detenu must be made to understand what were the contents of the memo asking for police custody, and also what were the actual contents of the order. Neither the memo nor the order passed by the Judicial Magistrate in respect of the police custody, was placed before the detaining authority. Thus, it would be quite clear that all these materials, which should have been placed by the sponsoring authority before the detaining authority, were not at all placed. Under the circumstances, the subjective satisfaction could not have been arrived at precisely in the matter, and therefore, it can be well stated that the order lacks in that regard.

7.Secondly, there was an extension of remand sought for before the Judicial Magistrate No.II, Tirunelvelli, in Crime No.894/2006 under Sections 387 and 506(ii) of I.P.C. A copy of the memo for extension and also the order passed thereon, were also placed, a copy of which was given to the detenu as found in the booklet. But, a perusal of the same would clearly indicate that an order came to be passed by the Judicial Magistrate on 24.7.2006, wherein it is found "Accused produced before me after police custody in Cr.No.599/2006. Case explained. Grounds of remand explained. Remand extended till 31.7.2006." This would clearly indicate that the detenu was produced, and the remand was extended only in Crime No.599/2006 and not in Crime No.894/2006, where extension of remand was sought for. Thus, it would be quite clear that so far as Crime No.894/2006 was concerned, no remand extension was made. Now, the materials as if the remand was extended in both the cases, were placed before the detaining authority. Thus, it would be quite clear that the materials placed were not only lacking, but also misleading.

8.In view of the above grounds, without any hesitation it can be held that the materials placed, are not sufficient for arriving at a subjective satisfaction by the detaining authority. This would be sufficient to quash the impugned order.

9.Accordingly, this habeas corpus petition is allowed quashing the order of the second respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in any other case. To

1.The Secretary to Government

Prohibition and Excise Department

Fort St. George, Chennai 9.

2.The Commissioner of Police

Tiruchirappalli City, Tiruchirappalli

3.The Inspector of Police

Contonment Police Station

Trichy

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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