Babu vs State of Tamil Nadu

P. Murgesen, J.—The Petitioner is the detenu. He was detained u/s 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest-offenders, Goondas, Immoral Traffic offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982), by order of the second Respondent made in No. 24/BDFGISSV/2009 dated 20.04.2009, by branding him as a ''GOONDA''.

There are four adverse cases and one ground case as against the detenu. The details of the adverse cases are as under:

Sl. No. Police Station and Crime No. Section of Law

1 B9 SS Colony (Crime) Police Station Crime No. 742 of 2006 379 IPC

2 D2 Samayanallur Police Station Crime No. 311 of 2007 454, 380 r/w 511 IPC

3 C3 SS Colony (Crime) Police Station Crime No. 1194 of 2008 457, 380 IPC

4 C2 Subramaniyapuram Police Station Crime No. 171 of 2009 457, 511 IPC @ 457, 380 IPC

The ground case was registered under Sections 392 r/w 397 and 506(ii) IPC in Crime No. 287 of 2009 on the file of C2 Subramaniapuram (Crime) Police Station. In the ground case, the detenu was arrested on 05.03.2009 and sent to judicial custody on the same day and thereafter his remand was extended upto 30.04.2009. The detention order was clamped on the detenu on 20.04.2009.

Learned Counsel for the Petitioner challenges the impugned order of detention on two grounds; firstly, the Detaining Authority had not satisfied itself as to the real possibility of the detenu coming out on bail, since the detenu had not filed any bail application in the ground case. Secondly, there was delay in considering the representation of the detenu.

The first ground of the counsel for the Petitioner is that the Detaining Authority had not satisfied itself as to the real possibility of the detenu coming out on bail. In the grounds of detention it is stated that the detenu was making efforts to file bail applications in the ground and adverse cases and therefore, there was possibility of the detenu coming out on bail by filing bail applications in the ground and the adverse cases. It is the submission of the learned Counsel for the Petitioner that the detenu had not filed any bail application in the ground case and therefore, the Detaining Authority cannot presume that the detenu will come out on bail by filing bail application.

The subjective satisfaction of the Detaining Authority that the detenu will come out on bail by filing bail applications, is not based on any material on record and it is only a presumption. Therefore, the subjective satisfaction of the Detaining Authority as regards the real possibility of the detenu coming out on bail, has not been established properly. In the case of K. Thirupathi v. District Magistrate and District Collector, reported in 2005 2 L.W.(Crl.) 946, a Full Bench of this Court has held that there must be cogent material before the Authority passing the detention order for inferring that the detenu was likely to be released on bail; this inference must be drawn from material on record and must not be the ipse dixit of the Authority passing the detention order. In the present case the Detaining Authority has passed the order only on presumption that there was real possibility of the detenu coming out on bail and absolutely there is no material to arrive at such conclusion. Having tested the present case in the light of the above Full Bench decision of this Court, we are of the considered view that the subjective satisfaction of the Detaining Authority as regards the real possibility of the detenu coming out on bail, is not established properly and accordingly, the detention order is liable to be set aside on this ground.

The second ground relied upon by the counsel for the Petitioner is there was a delay in considering the representation of the detenu. In this connection, the learned Additional Public Prosecutor appearing on behalf of the Respondents, has submitted a Proforma. It is stated in the Proforma as under:

Representation received on: 19.06.2009

Remarks called for on: 19.06.2009

Remarks received on: 26.06.2009

File submitted on: 29.06.2009

Under Secretary dealt with on: 29.06.2009

Additional Secretary dealt with on: 29.06.2009

Minister for PWD and Law dealt with on: 30.06.2009

Rejection letter prepared on: 10.07.2009

Rejection letter sent to the detenu: 14.07.2009

Rejection letter served to the detenu: 16.07.2009

Though the Minister for PWD and Law dealt with the representation on 30.06.2009, the rejection letter was prepared only on 10.07.2009 and finally it was served to the detenu on 16.07.2009 only. These delays are not properly explained with reason. Therefore, we are of the considered view that on this ground also, the detention order is liable to be set aside.

For all the above reasons, we are of the considered view this H.C.P is liable to be allowed and accordingly it is allowed and the order of detention in Order No. 24/BDFGISSV/2009 dated 20.04.2009 passed by the second Respondent is set aside. The detenu is directed to be released forthwith unless his presence is required in connection with any other case.