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2014 DIGILAW 51 (MAD)

S. Mary Jelestin Sudha v. State

2014-01-06

S.TAMILVANAN, V.S.RAVI

body2014
JUDGMENT S. Tamilvanan, J. 1. Heard the learned senior counsel appearing for the petitioner as well as the learned Additional Public Prosecutor appearing for the respondents. The Habeas Corpus Petition has been filed under Article 226 of the Constitution of India, challenging the detention order dated 10.09.2013, passed in P.D. No. 08 of 2013, by the first respondent, detaining the petitioner's husband Mohan alias Theeveeravathi Mohan, aged about 41 years, son of Kollappan and set him at liberty. 2. It is seen that as per the detention order dated 10.09.2013, there were four adverse cases and one ground case registered against the detenu, which are stated as under:- First adverse case was registered on 28.03.2003, in Colachel Police Station, Crime No. 63 of 2003, under Sections 306,387 and 506(ii) IPC; second adverse case was registered on 14.09.2008, in Eraniel Police Station, Crime No. 728 of 2008, under Sections 4 and 9 of Tamil Nadu Prohibition of Charging of Exorbitant Interest Act, 2003 r/w. Sections 506(ii) and387 IPC; third adverse case was registered on 03.09.2010, in Eraniel Police Station, Crime No. 543 of 2010, under Section 294(b) IPC; and fourth adverse case was registered on 29.06.2011, in Eraniel Police Station, Crime No. 239 of 2011, under Sections 341, 294(b) IPC and Sections 4 and 9 of Tamil Nadu Prohibition of Charging or Exorbitant Interest Act, 2003 and 307 IPC. As per the ground case, on 29.08.2003, at about 21.00 hrs at Vettukattuvilai, while the de facto complainant one Sadhu Santhosh Roy, retired Special Sub-Inspector of Police and his wife were inside their house and viewing television programme, the alleged detenu armed with a veecharuval along with his close associates, who were also armed with vettukathi (cutting knife), criminally trespassed into the house of the de facto complainant and damaged tube light, which was fitted inside the house and demanded to give him money and also threatened him that if he did not give money he would murder the de facto complainant and also to do away with his entire family, subsequently, at the junction when the de facto complainant Sadhu Santhosh Roy and his wife were standing, the detenu Mohan alias Theeveeravathi Mohan came there and pulled the shirt of the de facto complainant Sadhu Santhosh Roy and put veecharuval (sickle) on the neck of the de facto complainant and demanded money, which was an exorbitant interest for the amount which borrowed by wife of the de facto complainant and thereafter, that amount was settled one year back. However, due to fear, the de facto complainant took out a sum of Rs. 500/- from his shirt pocket and gave it to the accused. 3. Mr. V. Kathirvelu, learned senior counsel appearing for the petitioner submitted that all the aforesaid adverse cases and the ground case are pending for trial and there was no previous conviction against the detenu, based on oral complaint given against that he had demanded exorbitant interest, false case were registered against him by the police and learned counsel for the petitioner also drew the attention of this Court to the adverse cases registered against the detenu under Section 306 and other Sections of IPC. As per the ground case, though the de facto complainant has stated that for collecting the amount given with exorbitant interest, the alleged detenu had gone to the house of the de facto complainant with aruval and others with cutting knife, however, there is no allegation of causing any injury by the detenu or any other person. Hence, according to him, the case was foisted only to detain the petitioner's husband, the detenu herein and further the mandatory provisions have not been complied with by the respondents in clamping the detention order. 4. Hence, according to him, the case was foisted only to detain the petitioner's husband, the detenu herein and further the mandatory provisions have not been complied with by the respondents in clamping the detention order. 4. In support of his contention, the learned senior counsel drew the attention of this Court to the copy of the Pro forma furnished by the respondents. It is seen that after the detention order, representation in writing was sent by the petitioner on 26.09.2013 and remarks were called for on 27.09.2013. However, the remarks were received only on 07.10.2013, whereby, there is a delay of 10 days. Out of 10 days, admittedly, 5 days are holidays, including Gandhi Jayanthi (2nd October), for the remaining 5 days, there is no satisfactory explanation from the respondents. It is well settled that orders being passed under the preventive laws are not punitive in nature, but only for the purpose of preventing the detenu from committing similar offence, hence all mandatory provisions shall be followed by the respondents. As per Article 22(5) of the Constitution of India is one of the valuable Fundamental Rights, personal liberty, which should be protected and accordingly, causing delay in the disposal of the representation made by the detenu or on behalf of the detenu is construed as denial of personal liberty guaranteed to any citizen of this country. In the instant case, as contended by the learned senior counsel, the exorbitant interest allegedly demanded by the detenu has to be decided by competent Court having jurisdiction as per law. Merely based on the oral allegations and averments made by the de facto complainant in the ground case, the first respondent cannot have any subjective satisfaction to clamp the detention order, as contemplated under Act 14 of 1982 and further, there is no satisfactory explanation for the delay of 5 days, which would vitiate the detention order, in view of Article 22(5) of the Constitution, as it is only preventive in nature. 5. In Sumaiya v. The Secretary to Government of Tamil Nadu (2007 (2) MWN (Cri.) 145 (DB)), a Division Bench of this Court has held that an unexplained delay of three days in the disposal of the representation made on behalf of the detenu would be sufficient to quash the detention order, as the relief sought for relates to the fundamental rights of the detenu towards personal liberty. 6. 6. Learned senior counsel also relied on the decision rendered by the Hon'ble Apex Court reported in Subramanian v. State of Tamil Nadu and another reported in 2012 (4) SCC 699 : (AIR 2012 SC (Supp) 61), and submitted that the impugned detention order is liable to be quashed, since the detenu is liable to be prosecuted according to law and that there is no need to invoke the prevention laws on the facts and circumstances. Unexplained delay would vitiate the detention order as held by the Hon'ble Apex Court in various decisions. 7. The decision referred to above would also show that the unexplained delay is fatal to the detention order. If the delay is not satisfactorily explained by the detaining authority, that would be a valid ground in favour of the detenu to declare the order illegal. Personal liberty of any person is paramount as per Articles 19 and 21 of the Constitution of India. In the instant case, admittedly, after deducting the public holidays, there is five days delay, which has not been satisfactorily explained by the respondents. As discussed earlier, it is well settled that the detention order is preventive and not punitive in nature. It was also argued by the learned senior counsel that there could be no subjective satisfaction based on the materials placed before the first respondent, since there could be no act prejudicial to public order even as per the complaint given by the de facto complaint, as no one was injured and everything is based on the averments of the de facto complaint. Considering the unexplained delay in the light of the various decisions rendered by the Hon'ble Apex Court as well as this Court, we are of the view that the same is certainly violative of the constitutional right of personal liberty in view of Article 22(5) of the Constitution of India. 8. Having considered the unexplained delay and other aspects, we are of the view that the impugned detention order has no legs to stand, before the Court of law. Accordingly, the impugned order is liable to be set aside, in the light of the decisions rendered by the Hon'ble Apex Court and this Court. 9. On the facts and circumstances, the respondents cannot have pre-conclusion on the ground that it is a fit case to clamp the detention order. Accordingly, the impugned order is liable to be set aside, in the light of the decisions rendered by the Hon'ble Apex Court and this Court. 9. On the facts and circumstances, the respondents cannot have pre-conclusion on the ground that it is a fit case to clamp the detention order. Apart from the unexplained delay, even we are not convinced on the subjective satisfaction, in passing the detention order, since it comes under the exceptional category and not supported by any materials to decide that the detenu's act was prejudicial to public order except the version of the de facto complainant and further the respondents cannot say that there was imminent possibility or likelihood of the detenu coming out on bail without supporting materials. In the result, the Habeas Corpus Petition is allowed and the impugned detention order passed by the first respondent detaining the detenu, Mohan alias Theeveeravathi Mohan, aged about 41 years, s/o. Kollappan, made in P.D. No. 8 of 2013, dated 10.09.2013, is quashed and the detenu Mohan alias Theeveeravathi Mohan, s/o. Kolappan, is ordered to be set at liberty forthwith, unless his custody is required in connection with any other case. Petition allowed.