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2004 DIGILAW 1397 (MAD)

Tmt. Amsa v. State & Another

2004-10-26

K.P.SIVASUBRAMANIAM, S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment :- K.P.Sivasubramaniam, J. Both the habeas corpus petitions arise out of a common ground case and by the respective order dated 15.07.2004, the two detenus have been detained as Goondas under Act 14 of 1982. 2. Both the petitions have been taken up together in view of the fact that common questions are involved. In view of the fact that we are in agreement with the following points raised by the learned counsel for the petitioners, we are not dealing with the other contentions raised by the learned counsel. 3. It is stated that though the detention order was passed on 15.07.2004 and served on the detenus on 16.07.004, an amended order dated 24.07.2004 was served on both of them on 25.07.2004. Learned counsel for the petitioners contends that the detention order is vitiated on two grounds, viz., (i) the amended order was served beyond the statutory period of five days and (ii) the amended order did not contain the signature of the detaining authority, who was the competent authority. 4. The detenus have also raised this issue in grounds F and G contending that as the amended order was beyond the period of five days, the same was invalid and that the amended order has not been issued by the detaining authority himself and that it has not even been signed by the detaining authority. 5. We have called for the particulars and a perusal of the amended order in both the petitions discloses that they contain material variation of facts relating to the adverse cases. Apart from the correction in the dates of the charge memoes, as regards statement of facts also, the amended order contains variations in essential facts. Therefore, bearing in mind that the amendments are very essential, we have to see whether the amendments have been properly carried out within the period of limitation and in a proper manner. Admittedly, the amended orders have been served only beyond the period of limitation as provided under Section 8(1) of the Act 14 of 1982. 6. That apart, we have also seen the originals of the amended orders served on the detenus and the orders do not contain the signature of the Collector, but have been signed only as 'by order of the Collector'. 7. 6. That apart, we have also seen the originals of the amended orders served on the detenus and the orders do not contain the signature of the Collector, but have been signed only as 'by order of the Collector'. 7. It is needless to mention that the functions of the detaining authority under Act 14 of 1982 is quasi judicial and having regard to the fact that the preventive detention involves detaining of a person without trial, it is only the authority, who is competent under the statute to pass the order of detention, can ratify the amendments proposed in the order of detention. It may be that the amendments could be approved by the Collector in the note files and the actual orders communicated to the detenus may not contain the signature of the Collector. For this purpose, we have called for the note files relating to the orders of detention. However, it is found that the note files also do not contain the signature of the Collector. 8. In the case of H.C.P.No.926 of 2004 at page 6 of file No.C.2/D.O.No.27/2004, though a draft memo was put up for approval by the subordinate officials, it does not contain the signature or the initial of the Collector and that it has been signed by some other authority only for the Collector. 9. Likewise in H.C.P.No.928 of 2004, a perusal of the note file No.C2 D.O.No.28 of 2004 at page 6, it is seen that the draft memo has not been either signed or initialed by the Collector. Therefore, inasmuch as even the note files do not disclose proper approval by the Collector, there is no other alternative except to hold that the detaining authority has not applied his mind to the amendments to the order of detention. 10. Therefore, apart from the fact that the amended order has been served on the detenus beyond the period of five days, we are inclined to hold that the collector/detaining authority has also not applied his mind before the amendments were carried out and served on the detenus. As stated earlier, the Collector is discharging a very important quasi judicial function as enjoined upon him under Section 3(2) of Act 14 of 1982 and his functions cannot be delegated to his subordinate officials. 11. As stated earlier, the Collector is discharging a very important quasi judicial function as enjoined upon him under Section 3(2) of Act 14 of 1982 and his functions cannot be delegated to his subordinate officials. 11. In the result, we are inclined to hold that both the orders of detention are liable to be set aside and accordingly set aside. The habeas corpus petitions are allowed and the respondents are directed to set the detenus at liberty forthwith unless their presence is required in any other case.