Madras High Court
Archunan vs The Principal Secretary To ... on 7 October, 2021
H.C.P(MD) No.242 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
H.C.P(MD)No.242 of 2021
Archunan ... Petitioner
-vs-
1.The Principal Secretary to Government,
State of Tamil Nadu,
Home, Prohibition and Excise (XVI) Department,
Fort, St. George,
Chennai – 600 009.
2.The District Magistrate and District Collector,
Office of the District Magistrate and
District Collector,
Pudukottai District,
udukottai.
3.The Superintendent of Prison,
Trichy Central Prison,
Trichy.
... Respondents
PRAYER: Petition filed under Article 226 of the
Constitution of India, to issue a writ of habeas corpus,
calling for the entire records connected with the detention
order of the respondent No.2 in P.D.No.02 of 2021 dated
1/16
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H.C.P(MD) No.242 of 2021
02.02.2021 and quash the same and direct the respondents to
produce the body or person of the detenu by name
Thangadurai son of Ramasamy aged about 37 years, now
detained as Goonda in Trichy Central Prison before this
Court and set him liberty forthwith.
For Petitioner : Mr.R.Alagumani
For Respondents : Mr.S.Ravi,
Standing Counsel for the State
O R D E R
[Order of the Court was made by B.PUGALENDHI, J.]
The Habeas Corpus Petition has been filed by the
brother of the detenu Thangadurai, S/O, Ramasamy, aged
about 37 years, who has been branded as “Goonda” by the
second respondent in Detention Order P.D.No.02 of 2021,
dated 02.02.2021, as contemplated under Section 2(f) of the
Tamil Nadu Act 14 of 1982.
2.A perusal of the grounds of detention dated
02.02.2021, passed by the second respondent herein would
disclose that the detenu Thangadurai came to the adverse
notice in the following cases.
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H.C.P(MD) No.242 of 2021
Sl. Name of the Police
Sections of Law
No. Station and Crime No.
Gandarvakkottai Police
1. Station 294(b),341 and 323 IPC
Crime No.108 of 2016
294(b),323, 506(i), IPC r/w
Sections 3(1)(r), 3(1)(s),
3(2)(Va) of Scheduled caste
and Scheduled Tribes
(Prevention of Atrocities)
Gandarvakkottai Police Amendment Act, 2015 altered
2. Station into 294(b), 352, 506(i)
Crime No.150 of 2017 IPC, r/w Section 3(1)(r),
3(1)(s), 3(2) (Va) of
Scheduled caste and
Scheduled Tribes
(Prevention of Atrocities)
Amendment Act, 2015
294(b) and 323 IPC, r/w
Section 3(1)(r), 3(1)(s),
3(2) (Va) of Scheduled
caste and Scheduled Tribes
(Prevention of Atrocities)
Gandarvakkottai Police Amendment Act, 2015 altered
3. Station into
Crime No.28 of 2020 294(b) and 352 IPC, r/w
Section 3(1)(r), 3(1)(s),
3(2) (Va) of Scheduled
caste and Scheduled Tribes
(Prevention of Atrocities)
Amendment Act, 2015
Gandarvakkottai Police
294(b), 341, 324 and
4. Station
506(ii) IPC
Crime No.628 of 2020
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H.C.P(MD) No.242 of 2021
Sections 341 and 321 IPC
r/w Sections 3(1)(r), 3(1)
Adanakkottai Police (s), 3(2)(Va) of Scheduled
5. Station
Crime No.10 of 2021 Caste and Scheduled Tribes
(Prevention of Atrocities)
Amendment Act, 2015.
3.The grounds on which the detenu was detained are
that based on the intimation received from the Government
Medical College Hospital, Pudukottai, on 10.01.2021 around
03.00 hours, one Kanagaraj, Sub Inspector of Police,
Adanakkottai Police station rushed to the said hospital and
recorded the statement from the complainant, who was
admitted as inpatient. The complainant has stated that he
is a resident of Valavampatti, Gandarvakkottai Taluk,
Pudukottai District. When he along with his uncle were
travelling in a two wheeler bearing Registration No. TN 55
AA 5649 near one Vinayaga cashew factory on Pudukkottai to
Thanjavur National Highways, the detenu and three others
waylaid them, stabbed them with sickle and attacked them
with wooden log and iron rod with an intention to kill
them. When the complainant blocked the attack from the
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H.C.P(MD) No.242 of 2021
them, he sustained severe cut injury on his right hand,
right thumb and on his head and they have attacked his
uncle also on the instigation of i) Bombay Saravanan,
S/o.Panneer Selvam, ii) Siva, son of Panneerselvam,
iii) Arunprasath, S/o. Thambidurai, iv) Jagadeesan, son of
Arjunan of Aravampatti village and after attacking the
complainant and his uncle, they have fled from the place of
occurrence and based on the statement a case in crime No.10
of 2021 has been registered on the file of the Adanakkottai
Police Station for the offence punishable under Sections
341 and 324 IPC r/w Sections 3(1)(r), 3(1)(s), 3(2)(Va) of
Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Amendment Act, 2015. Subsequently, the detenu
was arrested on 10.01.2021 at 15.00 hours near
Gandarvakkottai Taluk Office, produced before the learned
Judicial Magistrate, Gandarvakkottai on 10.01.2021 and
remanded to judicial custody till 23.01.2021 and
subsequently, the remand was extended till 05.02.2021.
Being satisfied that the acts of the detenu are prejudicial
to the maintenance of piece and public order, the second
respondent has branded the petitioner as Goonda as
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H.C.P(MD) No.242 of 2021
contemplated under Section 2(f) of the Tamil Nadu Act 14
of 1982 and passed the detention order. Challenging, the
order of detention, this Habeas Corpus Petition has been
filed by the brother of the detenu.
4.Dr.R.Alagumani, learned counsel appearing for the
petitioner would submit that the subjective satisfaction
derived by the detaining authority in the grounds of
detention is that, 'further recourse to the normal criminal
law will not have the desired effect effectively preventing
him from indulging in such activities, which are
prejudicial to the maintenance of the public peace and
public order', however, there is no cogent material
available for arriving at such subjective satisfaction.
He further submitted that the detenu was remanded in the
ground case on 10.01.2021 and the detention order was
passed on 02.02.2021 and there is a delay of 22 days in
passing the detention order and the reason for such delay
has not been explained by the detaining authority.
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H.C.P(MD) No.242 of 2021
5.The learned counsel for the petitioner would further
submit that for revoking the order of detention, the detenu
submitted representation on 09.02.2021 and the Deputy
Secretary to Government, Home, Prohibition and Excise
Department, has dealt with the same on 19.03.2021 and the
Hon'ble Minister for Electricity, Prohibition and Excise,
has dealt with the same only on 12.04.2021 and there is a
delay of 57 days and even by excluding 22 intervening
holidays, still there was a delay of 35 days in dealing
with and considering the said representation and when no
proper explanation has been given, the said delay is fatal
for the reason that the valuable right of the detenu
guaranteed under Article 22(5) of the Constitution of
India, has been affected and therefore, prays for quashment
of the impugned orders of detention.
6.Per contra, Mr.S.Ravi, learned Standing Counsel
appearing for the State would submit that the Detaining
Authority, after due and proper application of mind has
rightly clamped the order of detention and in the facts and
circumstances of the case, the delay is very minimal and
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H.C.P(MD) No.242 of 2021
therefore, it is not fatal to the impugned order of
detention. Further, the learned Standing Counsel submitted
that the detenu has come to the adverse notice in the
following cases, viz., (i) Crime No.108 of 2016 on the file
of the Gandarvakkottai Police Station and he was convicted
with a fine of Rs.4500/- for the offence under Sections
294(b), 341 and 323 IPC, (ii)Crime No.150 of 2017, on the
file of the Gandarvakkottai Police Station for the offence
under Sections 294(b), 352, 506(i) IPC, r/w Section 3(1)
(r), 3(1)(s), 3(2) (Va) of Scheduled caste and Scheduled
Tribes (Prevention of Atrocities) Amendment Act, 2015 and
he has obtained bail on 10.08.2017 and trail is pending and
(iii) Crime No.28 of 2018 on the file of the
Gandarvakottail Police Station, for the offence under
Sections 294(b) and 352 IPC, r/w Section 3(1)(r), 3(1)(s),
3(2) (Va) of Scheduled caste and Scheduled Tribes
(Prevention of Atrocities) Amendment Act, 2015 and trial is
pending and in Crime No.628 of 2020 on the file of the
Gandarvakottail Police Station, for the offence under
Sections 294(b), 341, 324 and 506(ii) IPC and he has
obtained anticipatory bail and the case is under
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H.C.P(MD) No.242 of 2021
investigation and the detaining authority considering that
if the accused is let out freely, there is a possibility of
danger to the safety of general public and their belongings
and therefore, passed detention order. Therefore, he prayed
for dismissal of this petition.
7.Heard the learned Counsel for the petitioner and the
learned Standing Counsel appearing for the State and
perused the materials placed on record.
8.A perusal of the proforma would disclose that the
detenu made a representation on 09.02.2021, the Deputy
Secretary to Home, Prohibition and Excise Department dealt
with the representation on 19.03.2021 and the Hon'ble
Minister for Electricity, Prohibition and Excise, has dealt
with the same only on 12.04.2021 and there is a delay of 57
days and even by excluding 22 intervening holidays, still
there is a delay of 37 days in dealing with and considering
the said representation.
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9.Article 22(5) of the Constitution of India, casts
legal obligation on the Government to consider the detenu's
representation as early as possible. There should be no
slackness, indifference and callous attitude in
consideration of the representations of the persons who are
detained. Any unexplained delay would be breach of
constitutional imperative and it would render the continued
detention of the detenu as illegal. Every day delay in
dealing with the representation has to be explained and the
explanation offered must be reasonably indicating that
there was no slackness or indifference.
10.In Sumaiya vs. The Secretary to Government,
reported in 2007 (2) MWN (Cr.) 145, a Division Bench of
this Court held that the unexplained delay of three days in
disposal of the representation made on behalf of the detenu
would be sufficient to set aside the order of detention.
11.In Tara Chand vs. State of Rajasthan and others,
reported in 1980 (2) SCC 321, the Hon'ble Supreme Court has
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held that any inordinate and unexplained delay on the part
of the Government in considering the representation renders
the very detention illegal.
12.In this case there is a delay of 57 days and even
by excluding 22 intervening holidays, still there is a
delay of 37 days in dealing with and considering the said
representation. In the absence of any plausible or tenable
explanation, such a delay is fatal to the order of
detention.
13.Further, the learned Standing Counsel for the State
submitted that the detenu has come to the adverse notice in
several cases and therefore, it is necessary to detain the
detenue under the preventive law. He further submitted that
the detenu, who has been granted bail on 10.08.2017 in
Crime No.150 of 2017 on the file of the Gandarvakottai
Police Station has repeatedly involved in crimes and
subsequent cases have been registered against him in (i)
Crime No.28 of 2018 on the file of the Gandarvakottai
Police Station, (ii) Crime No. 628 of 2020 on the file of
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H.C.P(MD) No.242 of 2021
the Gandarvakottai Police Station and
(iii) Crime No.10 of 2021 on the file of the Adanankottai
Police Station.
14.Admittedly, the detenu was granted bail in the
first case on the condition that he should maintain good
conduct. The involvement of the detenu in the subsequent
cases reveal that he has misused the personal liberty
granted to him in the previous case, by indulging in
subsequent offences. If there is any such misuse of the
personal liberty granted to the accused, it would be a
ground for cancellation of bail. In this regard it would be
relevant to refer to the decision of the Hon'ble Supreme
Court in Raghubir Singh and Ors. v. State of Bihar, (1986)
4 SCC 481, wherein it has been held as follows:
“bail can be cancelled where (i)accused misuses
his liberty by indulging in similar criminal
activity, (ii) interferes with the course of
investigation, (iii) attempts to tamper with
evidence or witnesses, (iv) threatens witnesses
or indulges in similar activities which would
hamper smooth investigation, (v) there is
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H.C.P(MD) No.242 of 2021
likelihood of his fleeing to another country,
(vi) attempts to make himself scarce by going
underground or becoming unavailable to the
investigating agency, (vii) attempts to place
himself beyond the reach of his surety, etc.”
The above decision has been subsequently reiterated in
several other judgments of the Hon'ble Supreme Court.
15.In view of the above settled proposition of law, if
the accused after coming out of on bail, by misusing the
liberty granted to him, indulges in the commission of the
offence continuously, it is for the investigation agency to
bring the same to the notice of the Court concerned and
take steps for cancellation of bail before the Court
concerned along with relevant materials against the
accused, instead of invoking detention law.
16.In view of the foregoing discussion, the Habeas
Corpus Petition is allowed by setting aside the Order of
Detention passed by the second respondent herein, namely,
The District Magistrate and District Collector, Pudukottai
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H.C.P(MD) No.242 of 2021
in P.D.No.02 of 2021, dated 02.02.2021, the detenu, namely,
Thangadurai son of Ramasamy aged about 37 years, who is now
detained at Central Prison, Trichy is directed to be
released forthwith unless his presence [or] custody [or]
detention is required in connection with any other
case/proceedings.
[M.K.K.S.,J.] [B.P.,J.]
07.10.2021
dsk
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
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H.C.P(MD) No.242 of 2021
To
1.The Principal Secretary to Government,
State of Tamil Nadu,
Home, Prohibition and Excise (XVI) Department,
Fort, St. George,
Chennai – 600 009.
2.The District Magistrate and District Collector,
Office of the District Magistrate and
District Collector,
Pudukottai District,
Pudukottai.
3.The Superintendent of Prison,
Trichy Central Prison,
Trichy.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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H.C.P(MD) No.242 of 2021
K.KALYANASUNDARAM, J.
and
B.PUGALENDHI, J.
dsk
H.C.P(MD)No.242 of 2021
07.10.2021
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