Hcp petition against gondas order filed in mhc

IN THE HIGH COUER OF JUDICATURE AT MADRAS
(Criminal Side Jurisdiction)

H.C.P.No. of 2020

Kirithika
W/o.Surendar@Nathigan,
No.13, E Block, Kasi Flats,
Annai Sathya Nagar,
Ramapuram,
Chennai . …Petitioner (Wife of the Detenue)

Vs-

1. The Secretary to Government (Home)
Prohibition and Exercise Department
Government of Tamil Nadu,
Fort St.George,
Chennai- 600 009.

2. The Commissioner of Police,
Greater Chennai,
Office of the Commissioner of Police,
Vepery,
Chennai 600 007. …Respondents

AFFIDAVIT OF KIRITHIKA

I Kirithika aged about 26 years, W/o.Surendar@Nathigan, residing at No.13, E-Bock, Kasi Flats, Ramapuram, Chennai, Chennai District do hereby solemnly affirm and sincerely state as follows:
1. I submit that I am the Petitioner herein and the wife of the detenue Surendar@Nathigan and as such I am well acquainted with the facts and circumstances of the case. And the above Writ petition is filed for a Writ of Habeas Corpus to call for the records relating to the order No.253/BCDFGISSSV/2020 Dated 26.07.2020 passed by the 2nd respondent and quash the same consequently produce the detenue Surendar@Nathigan aged about 33 years S/o.Natarajan, before this Hon’ble Court and set him liberty and the detenue now confined in Central Prison, Chennai.
2. I further submit that my husband, the detenue is one of the Video Anchor of YouTube Channel namely Karuppar Koottam, the above said channel has been running from 17.09.2017. The channel continues to publish various programs and releasing number of videos expressing the analysis and its comments about various issues placing the same for the better appreciation of the Public at large. It is further submitted that the aim of YouTube channel is to eradicate the illiteracy, ignorance and to create scientific temper which is a goal sought to be achieved by the constitution of India and to eliminate and eradicate the superstitious believes prevailing among the society in the name culture, believes and the custom.
3. I submit that my husband, the detenue, Surendar@Nathigan aged about 33 years S/o. Natarajan, confined at Central Prison, Puzhal, has been detained as Cyber Law Offender in 253/BCDFGISSSV/2020 Dated 26.07.2020 ( Under the Tamil nadu Prevention of Dangerous Activities of Boot Leggers, Drug offenders, Forest offenders, Goondas, Immoral Traffic Offenders, Sand offenders, Slum Grabbers and Video Pirates Act, 1982, (Tamilnadu Act 14/1982) herein after referred as the Act. The detention order has been made in Crime No.249/2020, under sections 153, 153 A(1)(a), 295A, 505(1)(b) and 505(2) of I.P.C and section 67 of Information Technology Act 2008, on the file of The Inspector of Police, Cyber Crime Cell, Central Crime Branch, Chennai, the said detention is illegal on the following among other;
GROUNDS
i) The detenue is not a Cyber Law Offender as defined under the Act.
ii) The order of detention passed by the 2nd respondent is arbitrary and an absolute violation of fundamental rights of the detenue which is guaranteed under Articles 14, 19, 21, and 22 of the Constitution of India.
iii) The alleged offences made by the detenue did not affect the maintenance of Public order and thus the detention is vitiated and engineered one.
iv) The Statement made in the grounds of detention is more in the nature of ritual rather than any significance.
v) The ground case complaint dated 13.07.2020 preferred by the defacto complainant with regard to a program published as early as on 01.01.2020 and the present ground case complaint is filed much belatedly with sole intention to gain political advantage and gain cheap publicity and the detaining authority did not look in to the matter at large and passed the detention order in hurried and cavalier manner. Therefore the order of detention passed by the 2nd respondent is liable to be set-aside.
vi) The grounds referred to in the detention order are not proximate to the order of detention and there is no rational nexus to the conclusions drawn in the detention order.

vii) The non-furnishing the copy of G.O.(D).No.183 dated 16.07.2020 referred by the detaining authority, amount to denial of the opportunity to make effective representation.

viii) The delegation of the power by the 1st respondent on 16.07.2020, subsequent to the date of the complaint on 13.07.2020 and prior to the alteration of the offence under section 67 of the Information Technology Act on22.07.2020, is motivated, without jurisdiction and the order of detention is vitiated.
ix) In the absence of any materials for the disturbance to the public order as a consequence to the speech, the order of detention is illegal.

x) In the absence of materials for the allegation of past cases, the detention order passed based upon a solitary incident of a speech is illegal and not justifiable.

xi) The satisfaction of the detaining authority that the detenue has involved in similar such previous cases through the political agitations is without any materials, and the same would vitiate the order of detention.

xii) The offence under section 67 of Information Technology Act, would not at all be made out against the detenue and the insertion of the above offence in the name alteration of offence, is not only illegal and motivated but also purely an abuse of process of law.

xiii) The detaining authority has passed the detention order merely considering bail application filed by the detenue as the possibility to come out on bail very likely and the mere filing a bail application would not amount to imminent possibility of detenue coming out on bail and indulging in prejudicial activity. Hence there is no application of mind and subjective satisfaction on the part of detaining authority.
xiv) The imminent possibility of the petitioner from coming out on bail was merely the ipse dixit of the detaining authority unsupported by any material whatsoever.
xv) The statement of the detaining authority that this detenu has involved in similar previous cases through the political agitations, is without any material and hence the detention order without any material as to the pendency of the past cases, is vitiated.
xvi) There is non- application of mind in passing the detention order since the detenu is stated to have been involved in similar previous cases through the political agitations.
xvii) The detaining authority has grossly erred in considering the case in Cr.No.80/2016 for the similar case for considering the imminent possibilities of coming out on bail as the same was not a case of coming out on bail after a lapse of time but the same is an order for anticipatory bail granted by the Hon’ble High Court in Crl.O.P. No.5080/2016 prior to arrest.
xviii) The finding of the detaining authority that in similar case is bail is granted by the courts after a lapse of time, is unsupported by any material whatsoever when the similar case referred to is only an order for anticipatory bail granted before arrest and not one of a bail after a lapse of time. Hence the order of detention suffers from non application of mind and lack of subjective satisfaction.

xix) The order of detention also suffers for referring the case in Cr.No.80/2016 u/s 153A(1)(a)(b)(c), 505(2) and section 7(A) of Cinematography Act 1952 as similar case, when the present case contains more nonbailable offences under sections 153,153(A)(1)(a),295(A),505(1)(b),505 of IPC and section 67 of information Technology Act 2000 where there is no imminent possibilities of coming out on bail.

xx) The detaining authority also failed to consider the pendency of other case against the detenue in Crime No.524 of 2020 registered by the Jalagandapuram Police Station, Salem District in which the detenue has not moved for bail and hence there is no imminent possibility of coming out on bail.
xxi) The discrepancy in not showing the date of occurrence in the FIR in tamil version, while the English version showing the date of 12.07.2020, clearly reveals the non application of mind on the part of the detaining authority.
xxii) The analysis, the criticism or the comments made by the channel with the desire for democratic liberties, can never be said to be an offence.

xxiii) The comments made by the petitioner about the Kanda Sasti Kavasam devotional song allegedly offending the religious sentiments, would not in any way make out the offence under section 153(A), which attracts only the case of promoting enmity among two different religion and the case of two different religion does not exist in this case.

xxiv) The speech published by the youtube channel analyzing the lyrics of a devotional song as to whether it is obscene or not, would not amounting to affecting the maintenance of public order.
xxv) The case booked against the detenue can be tried under normal penal code and thus detention is unjust.

xxvi) The communication and the expression made by the media is not only a fundamental right guaranteed by the constitution of India but also a duty cast upon every citizen under Article 51A(h), to develop the scientific temper, humanism and the spirit of inquiry and reform.

xxvii) The representation of the detenue was not duly considered by the respondents.

xxviii) The 2nd respondent has mechanically and in cavalier manner passed the impugned order of detention.

xxix) The FIR copy of the similar case furnished in the booklet is illegible.
xxx) No booklet was given for the detenue at the time of giving the detention order and the grounds of detention which clearly reveals the malafide intention of the 2nd respondent in victimizing the detenue. The way of passing the order of detention is hasty and hurried manner, Hence the detention is vitiated.
xxxi) The petitioner hereby reserves her right to raise additional grounds at the time of arguments.
4. I further submit that in these circumstances without any other option the petitioner is approaching this hon’ble court by filing the present writ petition invoking its extra ordinary jurisdiction under Article 226 of Constitution of India for effective and efficacious remedy.
5. The petitioner has got the prima facie case and the balance of convenience is also in favor of the petitioner and if the detention order is not set aside, the petitioner will be put to great difficulty and hardships.
Therefore, it is prayed that this Hon’ble court may be pleased to pass an order or direction or writ, more particularly in the nature of Writ of Habeas Corpus to call for the records pursuant to the order in 253/BCDFGISSSV/2020 Dated 26.07.2020 passed by the 2nd respondent and quash the same consequently produce the detenue Surendar @Naathigan aged about 33 years S/o.Natarajan, before this Hon’ble Court and set him liberty and the detenue now confined in Central Prison, Puzhal, Chennai. And pass such other further orders as this Hon’ble court may deem fit and proper in the circumstances of the case and thus render justice.

Solemnly affirmed at Chennai}
On this the 10th day of August 2020} BEFORE ME
And after the contents of this affidavit is}
Read over and explained to him in Tamil}
And signed his name in presence.} ADVOCATE:CHENNAI

 

 

 

 

 

MEMORANDUM OF GROUNDS OF WRIT PETITION
(Under Article 226 of Constitution of India)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Criminal Side Jurisdiction)
H.C.P.No. of 2020
Kirithika
W/o.Surendar@Nathigan,
No.13, E Block, Kasi Flats,
Annai Sathya Nagar,
Ramapuram,
Chennai . …Petitioner( Wife of the Detenue)
Vs-
1. The Secretary to Government (Home)
Prohibition and Exercise Department
Government of Tamil Nadu,
Fort St.George,
Chennai- 600 009.

2. The Commissioner of Police,
Greater Chennai,
Office of the Commissioner of Police,
Vepery,
Chennai 600 007. …Respondents
WRIT OF HABEAS CORPUS PETITION FILED UNDER ARTICLE
226 OF THE CONSTITUTION OF INDIA

The address for service of all notices and process on the petitioner is that of his counsel M/s D.Arun and G.Neppoliyan and R.Sangavi Advocates having office at, 3rd Floor, Sri Sudarsanam Building, No. 4/7, Errabalu Chetty Street, Chennai-600001
The address for service of all notice and process on the respondent is the same as stated above.
For the reasons stated in the accompanying affidavit, it is prayed that this Hon’ble court may be pleased to pass an order or direction or writ, more particularly in the nature of of Writ of Habeas Corpus to call for the records pursuant to the order in 253/BCDFGISSSV/2020 passed by the 2nd respondent and quash the same, consequently produce the detenue Surendar@Nathigan aged about 33 years S/o.Natarajan before this Hon’ble Court and set him liberty and the detenue now confined in Central Prison, Salem. And pass such other further orders as this Hon’ble court may deem fit and proper in the circumstances of the case and thus render justice.
Dated at Chennai on this the 10th day of August, 2020
Counsel for Petitioner.

IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Criminal Side Jurisdiction)
H.C.P.No. of 2020
Kirithika
W/o.Surendar@Nathigan,
No.13, E Block, Kasi Flats,
Annai Sathya Nagar,
Ramapuram,
Chennai . …Petitioner( Wife of the Detenue)

Vs-
1. The Secretary to Government (Home)
Prohibition and Exercise Department
Government of Tamil Nadu,
Fort St.George,
Chennai- 600 009.

2. The Commissioner of Police,
Greater Chennai,
Office of the Commissioner of Police,
Veppery,
Chennai 600 007. …Respondents

IDEX TO TYPED SET
S. No. Dates Particulars
Page.No

1.
26 .07.2020
Order of detention passed by the 2nd Respondent

2. 30. 07. 2020 Grounds of detention issued by the 2nd respondent
3. 05. 08. 2020 Representation made by the petitioner to the respondents with postal receipts.

Certified that the above said documents are true copies of their respective Originals.

Dated at Chennai on this the 10th day of August, 2020.

Counsel for Petitioner

 

 

 

IN THE HIGH COURT OF
JUDICATURE AT MADRAS
(Criminal Side Jurisdiction)

H.C.P.No. of 2020
Kirithika
W/o. Surendar@Nathigan
Chennai
…Petitioner/Wife of the detenue

Vs-

1.The Secretary to Government(Home
Prohibition and Exercise Department
Government of Tamil Nadu
Fort St.George, Chennai-9
And 1 another.
…Respondents

 

 

 

 

 

 

AFFIDAVIT OF KIRITHIKA

 

 

 

 

 

 

 

M/s. D.ARUN
EN.NO.1286/2009
G.NEPPOLIYAN
R.SANGAVI
Counsel for Petitioner
tharunand@gmail.com
9600086701

IN THE HIGH COURT OF
JUDICATURE AT MADRAS
(Criminal Side Jurisdiction)

H.C.P.No. of 2020
Kirithika
W/o. Surendar@Nathigan
Chennai
…Petitioner/Wife of the detenue

Vs-

1.The Secretary to Government(Home
Prohibition and Exercise Department
Government of Tamil Nadu
Fort St.George, Chennai-9
And 1 another.
…Respondents

 

 

 

 

 

 

HABEAS CORPUS PETITION

 

 

 

 

 

 

 

M/s. D.ARUN
EN.NO.1286/2009
G.NEPPOLIYAN
R.SANGAVI
Counsel for Petitioner
tharunand@gmail.com
9600086701

IN THE HIGH COURT OF
JUDICATURE AT MADRAS
(Criminal Side Jurisdiction)

H.C.P.No. of 2020
Kirithika
W/o. Surendar@Nathigan
Chennai
…Petitioner/Wife of the detenue

Vs-

1.The Secretary to Government(Home
Prohibition and Exercise Department
Government of Tamil Nadu
Fort St.George, Chennai-9
And 1 another.
…Respondents

 

 

 

 

 

 

TYPED SET

 

 

 

 

 

 

 

M/s. D.ARUN
EN.NO.1286/2009
G.NEPPOLIYAN
R.SANGAVI
Counsel for Petitioner
tharunand@gmail.com
9600086701

 

 

 

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