Balasundari vs The State of Tamil Nadu

M. Chockalingam, J.—This Writ Application challenges an Order of Detention made by the second respondent on 16.12.2009 whereby the son of the petitioner was ordered to be detained under the provisions of 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 (Tamil Nadu Act 14 of 1982) branding him as a "Goonda".

The Court heard the learned Counsel appearing for the petitioner and looked into all the materials available, in particular, the order under challenge.

The detenu was involved in two adverse cases as follows:

Sl. Police Station Section of law No. Cr. No. & Date 1 Fort P.S. 392 IPC Crime No. 1430/2009 2 Woraiyur P.S. 387, 506(ii) IPC Crime No. 1499/2009

Apart from that, the detenu was involved in one ground case registered by Fort Police Station in Crime No. 2024/2009 under Sections 392 r/w 397 IPC on 2.12.2009 and he was arrested on the next day.

It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the detenu was involved in two adverse cases and in one ground case referred to above, on scrutiny of the materials, the detaining authority has made the order under challenge branding him as a "Goonda" after recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and the same is the subject matter of challenge before this Court.

The grounds which are urged by the learned Counsel for the petitioner are as follows:

(i) Insofar as the ground case was concerned, he moved a bail application, which was pending on the file of the Judicial Magistrate No. 1, Tiruchirappalli when the order came to be passed on 16.12.2009 but the detaining authority has stated that the detenu is very likely to be released on bail in Fort P.S.Crime No. 2024/2009. The learned Counsel would further add that when the bail application itself was pending before the Court of criminal law, such an observation which impelled the detaining authority to record subjective satisfaction was only an impression passing in the mind of the detaining authority without any material whatsoever.

(ii) Added further the learned Counsel that insofar as the second adverse case is concerned, no bail application was filed at all and this was not considered by the detaining authority.

(iii) Added further the learned Counsel that there was delay in consideration of the representation.

On these grounds, the order of detention has got to be set aside.

6.The Court heard the learned Additional Public Prosecutor on the above contention.

Admittedly, the order under challenge came to be passed on the recommendation made by the sponsoring authority that the detenu was involved in two adverse cases and one ground case as referred to above. Paragraph No. 5 of the order reads as follows:

I am aware that Vijay @ Vijaybabu is in remand in Fort P.S.Cr. No. 2024/2009 and Woraiyur P.S.Cr. No. 1499/2009. He has filed bail application in the ground case in Fort P.S. Cr. No. 2024/2009 before the Judicial Magistrate No. 1, Tiruchirappalli vide C.M.P. No. 6044/2009 and the same is pending. He has not filed any bail application in the adverse case in Woraiyur P.S.Cr. NO. 1499/2009 so far. In the adverse case in Fort P.S. Cr. No. 1430/2009, he filed bail application and he was released on bail. His grand father Dhashinamoorthi stated before the Inspector of Police, Fort (L & O) P.S. that he will take him on bail in Fort P.S.Cr. No. 2024/2009 and Woraiyur P.S.Cr. No. 1499/2009. From this, I draw the inference that he is very likely to be released on bail in Fort P.S.Cr. No. 2024/2009 and there is a real possibility of his coming out on bail by filing bail application in Woraiyur P.S.Cr. NO. 1499/2009. If he comes out on bail, he will indulge in future activities which will be prejudicial to the maintenance of public order.

The very reading of the above, would make it clear that though bail application was pending before the Court of criminal law when the order under challenge came to be passed, the detaining authority observed that the detenu was very likely to be released on bail in Fort P.S.Cr. No. 2024/2009 and there was a real possibility of his coming out on bail by filing bail application in Woraiyur P.S.Cr. NO. 1499/2009. This was only an expression of apprehension in the mind of the detaining authority without materials, muchless, cogent material. Apart from the same, it is an admitted position that the detenu has not moved any bail application in the second adverse case.

Apart from the above, the delay is also noticed. Representation was made on 29.3.2010 and the same was received on 1.4.2010. Remarks were called for on 5.4.2010 and the same was received on 9.4.2010 and the Minister for Law, Courts and Prisons dealt with on 13.4.2010 and rejection letter was prepared on 21.4.2010. Out of these 8 days, 14.4.2010, 17.4.2010 and 18.4.2010 were found to be holidays. The remaining period of five days remain unexplained. No doubt, the delay would have caused prejudice to the interest of the detenu. On all these grounds, the order of detention has got to be set aside.

Accordingly, the order of detention is set aside. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case. The Habeas Corpus Petition is allowed.