IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14-07-2009 CORAM THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE RAJA ELANGO HCP No.730 of 2009 Murugan .. Petitioner vs 1.The Superintendent of Police, Central Prison, Puzhal-I, Chennai. 2.The Inspector of Police, Korapet, Orissa State. ... Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying to issue a writ of habeas corpus directing the respondents to produce the detenu Sundaramoorthy S/o.Vedi aged 38 years now confined in Central Prison, Chennai before this Court and set him at liberty forthwith. For Petitioner : Mr.R.Sankarasubbu For Respondents : Mr.V.R.Balasubramanian Additional Public Prosecutor, ORDER RAJA ELANGO,J This petition has been filed for production of one Sundaramoorthy, S/o.Vedi, now confined in Central Prison, Chennai, alleging that his detention is illegal and has to be produced before the Court and set him at liberty forthwith. 2. Brief fact of the case are as follows:- The detenu Sundaramoorthy was taken to custody on 08.07.2007 and produced before the POTA Court on 11.07.2007. Ever since the date of his arrest, the detenu is under the Judicial Custody till date and the detenu is involved in the following cases:- https://hcservices.ecourts.gov.in/hcservices/ Sl.No Police Station Cr.No. Under Section 1 Mathikonpalayam 49/88 147, 148, 324,307 I.P.C. Chief Judicial Magistrate Court, Dharmapuri in S.C.No.76/2008. 2 Dharmapuri RP.Cr. No.80/ 92 120(B) I.P.C. & 150(2)(a) of Indian Railways Act and Sec.3(2), 4,5 & 6 of TADA Act, 1987 and Sec.4 & 5 of Indian Explosive Substances Act 1908. 3 Krishnapuram 1370/9 9 147,148,506(ii) I.P.C. and Sec.3 & 4 of PPDL Act. Chief Judicial Magistrate Court, Dharmapuri in S.C.No.75/2008. 4. Mathikonpalayam 269/01 147,148, 120(B) I.P.C. r/w 25 (1) (a) I.A. Act and Sec.3 of Indian Explosive Substances Act,1908. JM- I, Dharmapuri in C.C.No.82/2009. 5. Uthangarai and Kallavi 1004, 1005, 1006/0 2 and Kallav i P.S. Cr.No. 434/04 148,333,307 r/w. 149 I.P.C. and Sec.120(B), r/w.3(2)(b) of the Prevention of Terrorism Act 2002, Sec.25(1-B) of the Arms Act 1959 and Sec.3(3), 3(5), 4(b), 22(1) of the Prevention of Terrorism Act,2002. POTA Court, Poonamallee, Chennai in CC.No.5/2003. 6. Nagarasampatti 162/04 4(b) & 5 of I.E. Act, Committed to Principal District Sessions Judge, Krishnagiri in S.C.No.15 of 2009. 7. Nagarasampatti 413/04 4 of Explosive Act and Sec.25(1)(b) of Indian Arms Act 1959. Committed to Principal District Sessions Judge, Krishnagiri in S.C.No.16/2009. 8. Koraput 15/04 147,148,302,343,396,450,427,120(b), 109, 147 I.P.C. r/w.25(1)(a) of I.A. Act and 7 of PLA Act, Sub Divisional Judicial Magistrate Court, Koraput, Orissa State. 9. Periyakulam 232/07 147,148,120(B), 124(A), 216 IPC and Sec.25(1) (B) (a) of I.A. Act and Sec.4,5 of I.E. Act,1908. PRC. No.14/2009 in JM, Periyakulam. 3. The main contention raised by the petitioner is that the detenu was taken from Central Prison, Puzhal, Chennai on 12.01.2008 and the whereabouts are not known to the petitioner till he was produced before the POTA Court on 23.07.2008. The petitioner further submits that the detenu was not produced before the designated Court on 04.03.2009 and 20.03.2009. https://hcservices.ecourts.gov.in/hcservices/ 4. The learned counsel for the petitioner assails the period of detention of the detenu from 12.01.2008 to 23.07.2008 and till his production before the Court and the non production of the detenu on 04.03.2009 and 20.03.2009 being illegal, the present detention is also considered to be illegal one. 5. The learned Additional Public Prosecutor appearing for the respondents filed a detailed counter affidavit stating that the detenu is involved in many cases as mentioned above. The learned Additional Public Prosecutor further submits that his detention from 12.01.2008 to 23.07.2008 is not illegal, in view of the fact that the detenu was taken custody from the Central Prison, Puzhal, Chennai on the basis of production of under trial prisoner warrant (commonly known as P.T. warrant)issued by the SDJM, Koraput and produced before the same Court on 18.01.2008 and from the above said date, the detenu was continued to be produced before the concerned Court till 23.07.2008 and subsequently brought back to Central Prison, Puzhal, Chennai. 6. Now he is facing the trial in the above said cases. In all cases, he was produced before the concerned Court and the remand period is also extended by the concerned Court. As far as the non production of the detenu on 04.03.2009 and 20.03.2009, is concerned, it is due to the fact that the Advocates were on boycott and the officials could not produce the detenu before the Court. But, the detenu was subsequently produced before the Court and also he availed Parole on 09.04.2009 before the POTA Court and he was allowed to see his ailing mother at his native place. 7. In support of his contentions, the learned counsel appearing for the petitioner relied on a decision of the Supreme Court reported in A.I.R.1953 Supreme Court 277 (Ram Narayan Singh Vs. The State of Delhi and others) and another judgment of the Supreme Court reported in 1986 Supreme Court Cases(Cri) 47 (Bhim Singh, MLA Vs. State of J & K and others). As far as these two judgments are concerned, they deal with the subsequent remand of an accused after the illegal custody. The present facts of the case are that the petitioner is facing number of cases in various places and ever since the date of his arrest, he continued to be under judicial custody by proper remand orders passed by the concerned Courts. 8. The questions now to be decided are as to whether, i) The detention during the period from 12.01.2008 to 23.07.2008 is illegal? ii) The non production of detenu before the Court on 04.03.2009 and 20.03.2009 is illegal? and iii) His subsequent remand is illegal; in view of the above said two facts? 9. Admittedly, the Habeas Corpus Petition is filed by the petitioner on 11.05.2009, nearly after two months from 20.03.2009. In the Habeas Corpus Petitions, the date of filing of the petitions, https://hcservices.ecourts.gov.in/hcservices/ the date of return and the date of hearing of the petitions are more relevant to decide as to whether the detention of the detenu is legal or illegal. We are of the opinion that for deciding the issue, the date of filing of the petition, the date of return and the date of hearing of the petition would be relevant and our view is fortified by the judgment of the Supreme Court reported in AIR 1974 Supreme Court 510, decided by his Lordships, Hon'ble Mr. Justice.P.N.BHAGWATI and Hon'ble Mr. Justice P.K.GOSWAMI (Kanu Sanyal Vs. District Magistrate, Darjeeling and others) and the relevant portion of the judgment reads as follows:- 3... It is now well settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus proceedings may be examined is the date on which the application for habeas corpus is made to the Court. This Court speaking through Wanchoo, J.,(as he then was) said in A.K.Gopalan v. Government of India;(1966) 2 SCR 427=(AIR 1966 SC 816). "It is well settled that in dealing with the petition for habeas Corpus the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of the hearing" In two early decisions of this Court, however, namely Naranjan Singh V. State of Punjab, 1952 SCR 395= (AIR 1952 SC 106) and Ram Narain Singh V. State of Delhi, 1953 SCR 652=(AIR 1953 SC 277) a slightly different view was expressed and that view was reiterated by this Court in B.R.Rao V. State of Orissa AIR 1971 SC 2197 where it was said. " In habeas Corpus the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. And yet in another decision of this Court in Talib Husain V. State of Jammu and Kashmir AIR 1971 SC 62 Mr. Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that "in habeas Corpus proceeding the Court has to consider the legality of the detention on the date of the hearing. Of these three views taken by the Court at difference times, the second appears to be more in consonance with the law and practice in England and may betaken as having received the largest measure of approval in India, though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple reason that if on that date the detnetion is legal, the Court cannot order release of the https://hcservices.ecourts.gov.in/hcservices/ person detained by issuing a writ of hebeas corpus. 10. In the present case:- i) On the date of filing of the petition, the detenu was in legal remand; ii) On the date of return also he continued to be in judicial custody by a valid remand order; iii) On the date of hearing also the detenu is in judicial custody, as per the remand orders passed by the various Courts. 11. For the foregoing reasons, we hold that since the detention of the detenu is legal and he is in the prison by valid remand order as on the date of filing the petition and on the date of hearing, the question of invoking the Habeas Corpus jurisdiction does not arise. 12. Accordingly, this Habeas Corpus Petition is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rrg To: 1.The Superintendent of Police, Central Prison, Puzhal-I, Chennai. 2.The Inspector of Police, Korapet, Orissa State. 3.The Public Prosecutor High Court, Madras. CU(CO) km/21.7. HCP No.730 of 2009 https://hcservices.ecourts.gov.in/hcservices/