Allowed

V.Malaiyalagu v. the Commissioner of Police

Madras HC7 Jul 2017HCP(MD)/240/2017

Case brief

AI extract

What is this about?

In this habeas corpus petition, the Madurai Bench of the Madras High Court considered the detention of a Sandal Offender. The Court, following a Division Bench judgment, set aside the detention order because the detaining authority had actively participated in sponsoring the detention by attesting the sponsoring authority's affidavit, violating the principle of independence.

What did the court decide?

The order of detention in No.6/BCDFGISSSV/2017 dated 07.02.2017 passed by the first respondent is set aside. The detenu Thangaraj is directed to be released forthwith.

V.Malaiyalagu Vs the Commissioner of Police — Pension and Retirement Benefits | Madras HC (2017)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07.07.2017 CORAM:

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THE HONOURABLE MR.JUSTICE M.M.SUNDRESH and

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THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

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H.C.P.(MD) No.240 of 2017

V.Malaiyalagu

... Petitioner

-vs-

1.State represented by, The Commissioner of Police, Tirunelveli City, Tirunelveli – 9.

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2.The Principal Secretary to Government, Home, Prohibition and Excise (xiv) Department, Secretariat, Chennai – 9.

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3.State Represented by, The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli District. ... Respondents

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PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, calling for the records from the first respondent in No.6/BCDFGISSSV/2017 dated 07.02.2017, by setting aside the said order of detention passed by the first respondent and setting the detenue Thangaraj, aged 24 years, S/o.Veluthevar at liberty now detained in the Central Prison, Palayamkottai.

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For Petitioner : Mr.V.Kathirvelu Senior Counsel for M/s.K.Prabhu For Respondents : Mr.C.Ramesh Additional Public Prosecutor

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O R D E R

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[Order of the Court was made by M.M.SUNDRESH, J.]

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The petitioner is the mother of the detenu, namely, Thangaraj, son of Velu Thevar, Male, aged about 24 years. The detenu has been https://hcservices.ecourts.gov.in/hcservices/ detained by the first respondent by his order in No.6/BCDFGISSSV/2017, dated 07.02.2017, holding him to be a "Sand

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Offender", as contemplated under Section 2(gg) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.

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2. We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondents. We have also perused the records produced by the Detaining Authority.

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3. Though several grounds have been raised in the Habeas Corpus Petition, the learned Senior Counsel appearing for the petitioner would mainly focus his argument on the ground of predetermination as the affidavit filed by the sponsoring authority has been attested by the detaining authority. The learned Senior Counsel also brought to the notice of the Court, the document is an affidavit filed by the sponsoring authority, which on a perusal would show that the affidavit of the sponsoring authority has been attested by the detaining authority dated 06.02.2017.

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4. Per contra, the learned Additional Public Prosecutor while reiterating the averments in the counter affidavit would submit that the order of detention has been passed on cogent and sufficient materials and the same cannot be interfered with at the instance of the petitioner.

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5. The law on this issue is no longer res-integra as held by the Division Bench of this Court in Madasamy v. Secretary to Government [(2017) 1 MLJ 541] , wherein it has been held as follows:

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"33.The very same Commissioner, thereafter, passed the order of detention on different dates. The detention order in H.C.P.(MD) No.556 of 2016 was passed on 21 April, 2016. The detention order in H.C.P.(MD) No.557 of 2016 was passed on 18 April, 2016. The detention order in H.C.P.(MD) No.558 of 2016 was passed on 18 April, 2016. The detention order in H.C.P.(MD) No.687 of 2016 was passed on 18 May, 2016. Similarly, the detention order in H.C.P.(MD) No.688 of 2016 was passed on 11 May, 2016.

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34.The affidavit of the sponsoring authority in H.C.P.(MD) No.556 of 2016 is dated 20 April, 2016. Based on the said affidavit, duly attested by the Commissioner of Police, the very same Commissioner of Police, Madurai, in his capacity as the Detaining Authority passed the order of detention on 21 April, 2016, which is challenged in H.C.P.(MD) No.556 of 2016.

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40.The Act mandates that the Commissioner of Police must arrive a satisfaction on the basis of materials https://hcservices.ecourts.gov.in/hcservices/ placed before him. In case the materials were collected by him, or he actively took part either to make out the

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grounds to detain a person or to make a request to detain a person through the sponsoring authority, it would be clear that he acted with a pre-conceived notion to set the scores.

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41.The Detaining Authority should act independently

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and with an open mind. He should not prejudge the issue even before considering the materials produced before him by the sponsoring authority.

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42.In the subject cases, it is clear that the Commissioner of Police Actively took part in the process of sponsoring the case of the detenus for detention. The affidavits of the sponsoring officers were attested by the Commissioner of Police by sitting in the arm-chair of the Detaining Authority. He was, therefore, in the know of things, even before the commencement of statutory proceedings for detention. In short, the Commissioner of Police himself was part of the team of complainants otherwise called as sponsoring authorities. Thereafter, he turned the chair and acted in a different capacity as the Detaining Authority. The sponsoring authority and Detaining Authority are practically one and the same in all these matters.

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The active participation of the Detaining Authority in the process of sponsoring the name of the detenus for detention would go to the root of the matter and, therefore, is sufficient to set aside the orders of detention on the ground of pre-determination. We are, therefore, of the view that the detention orders are unsustainable in law."

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6. In the subject case also, the detaining authority has actively participated in the process of sponsoring the name of the detenu for detention by attesting the affidavit filed by the sponsoring authority and it is sufficient to set aside the orders of detention on the ground of pre-determination.

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7. In the result, the Habeas Corpus Petition is allowed and the order of detention in No.6/BCDFGISSSV/2017, dated 07.02.2017, passed by the first respondent is set aside. The detenu, namely, Thangaraj, son of Velu Thevar, aged about 24 years, is directed to be released forthwith unless his detention is required in connection with any other case.

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Sd/-

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Assistant Registrar(CO)

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/True copy/

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Sub Assistant Registrar

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https://hcservices.ecourts.gov.in/hcservices/

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To:

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1.The Principal Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai - 600 009. 2.The Commissioner of Police, Tirunelveli City, Tirunelveli - 9. 3.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli District. 4.The Director General of Police, Chennai. 5.The Joint Secretary to Government, Public (Law & order), Fort St.George, Chennai-9. 6. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Sj

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AE/MR KKR/SAR3/21.07.2017/4P/7C

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H.C.P.(MD) No.240 of 2017 07.07.2017

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https://hcservices.ecourts.gov.in/hcservices/

V.Malaiyalagu v. the Commissioner of Police

Case brief

What is this about?

What did the court decide?

V.Malaiyalagu v. the Commissioner of Police

Case brief

What is this about?

What did the court decide?

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