[Order of the Court was made by M.M.SUNDRESH, J.] The petitioner is the detenu, namely, Jeganathan @ Jegan, son of Thangam, male, aged about 36 years. The detenu has been detained by the second respondent by his order in Detention Order No.24/2017, dated 12.04.2017, holding him to be a "Drug Offender", as contemplated under Section 2(e) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.
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.
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 pre-determination 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.
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.
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:
"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.
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. ..
40.The Act mandates that the Commissioner of Police must arrive a satisfaction on the basis of materials placed before him. In case the materials were collected by him, or he actively took part either to make out the 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.
41.The Detaining Authority should act independently and with an open mind. He should not prejudge the issue even before considering the materials produced before him by the sponsoring authority.
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.
43. 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."
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.
7. In the result, the Habeas Corpus Petition is allowed and the order of detention in Detention Order No.24/2017, dated 12.04.2017, passed by the second respondent is set aside. The detenu, namely, Jeganathan @ Jegan, son of Thangam, male, aged about 36 years is directed to be released forthwith unless his detention is required in connection with any other case.
To:
1.The Principal Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Fort St George, Chennai ? 9.
2.The District Magistrate and District Collector, Office of the District Magistrate and District Collector, Dindigul District, Dindigul.
3.The Superintendent of Prison, Madurai Central Prison, Madurai District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..