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Judgment
M. Chockalingam, J.—This Writ Petition challenges an Order of Detention of the second respondent made in Detention Order No. 3/2010/C3 in TPDA 4376, dated 04.01.2010 whereby the husband of the petitioner, by name, Powndurai, 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 "Sand Offender".
The Court heard the learned Counsel appearing for the petitioner and looked into all the materials available, in particular, the order under challenge.
The Cumbum South Police registered a case in Crime No. 598/2009 u/s 21(4) of Mines and Minerals Development and Regulation Act 1957 r/w 36 A(1) of Miner and Minerals Concession Rule 1959 and 3 of TNPP(T) &(L)Act and 379 IPC against the detenue on 23.12.2009 when he was found in possession of the material objects along with the sand. It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the detenu had indulged in theft of sand, the detaining authority on scrutiny of the materials, had recorded its subjective satisfaction that the detenu had indulged in the activities which were likely to cause danger to the public order and public tranquility and also cause extensive damage to the public properties, he was to be termed as a "Sand Offender" and accordingly, made the order under challenge.
Advancing the arguments on behalf of the petitioner, the learned Counsel for the petitioner, Mr. C.M. Arumugam, made the following submissions in his sincere attempt in assailing the order of detention:
(i) The order of detention came to be passed on 4.1.2010 branding the detenu as a "Sand Offender". Pursuant to the registration of the case by the Cumbum South Police in Crime No. 598/2009 under the sections referred to above, the detenu was arrested on 23.12.2009. He did not file any bail application before any Criminal Court of Law but the detaining authority has stated that If he comes out on bail, he will indulge in future activities, which will be prejudicial to the maintenance of Public Order. Thus, the observation was made without any basis or any material much less cogent material.
(ii) Added further the learned Counsel that the case of the prosecution before the trial Court was that the detenu was found in possession of 2 units of sand and the same were also seized but neither athatchi for the recovery nor form 95 for production of the material was available before the Court. The Judicial Magistrate did not refer to the sand at all. But all other materials such as tractors, spade etc., were all produced and thus it casts a doubt whether actually sand was recovered, if recovered what happened to the sand. There was no explanation at all. Under the circumstances, the detaining authority should have called for an explanation from the sponsoring authority but not done so.
(iii) No information was given to the close relative or friend informing the cause of the arrest of detenu. According to the learned Counsel, these all would suffice to set aside the order of detention.
The Court heard the learned Additional Public Prosecutor on the above contention and paid its anxious consideration on the submissions made.
It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the detenu was involved in illegal activities of sand theft and a case was registered by the Cumbum South Police in Crime No. 598/2009 under the provisions of law referred to above on 23.12.2009, the detaining authority, on scrutiny of the materials placed, made the order under challenge branding the detenu as a Sand Offender.
It is also not in controversy that no bail application was filed by the detenu before any Criminal Court of Law. While the matter stood thus, it was observed by the detaining authority in Paragraph No. 5 that if he comes out on bail, he will indulge in such activities, prejudicial to the maintenance of public order. Paragraph No. 5 reads as follows:
I am aware that Thiru. Pondurai, is in remand in connection with Cumbum South Police Station Cr. No. 598/2009 and has not moved any bail application. If he comes out on bail, he will indulge in future activities, which will be prejudicial to the maintenance of Public Order. Further, the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of public order. On the materials placed before me, I am satisfied that the said Thiru. Poundurai, is a "Sand Offender" and there is a real possibility that who would indulge in such activities in future and there is a compelling necessity to keep him under detention as per the provisions of Tamil Nadu Act 14 of 1982.
When no bail application was filed or pending before any Criminal Court of Law on the date when the order of detention came to be passed, the above observation made by the detaining authority that if he comes out on bail, he would indulge in future activities, is without any material much less cogent material. Such observation was only an expression of impression that was passing in the mind of the detaining authority but without any material. The law would warrant not only the material but also cogent material but it is not available in the instant case.
It is also brought to the notice of the Court that it was a case registered by the the Cumbum South Police on the above provisions of law alleging that there was sand theft on 23.12.2009 by the detenu. In the athatchi or Form 95 for the production of material objects before the Court below, they did not refer to the production of any sand as rightly pointed out by the learned Counsel for the petitioner. Hence, it would be quite clear that it was not a case of theft of sand but the tractors were alleged to have been seized from the place of occurrence and hence no sand was produced before the Court.
Learned Additional Public Prosecutor for the State took the Court to paragraph 10 of the counter affidavit which reads as follows:
10) it is submitted that the Ground (h) sand two units (each one unit from tractor) were handed over to Tahsildar, Uthamapalaym on 30.12.2009 and the other items i.e. 2 tractors, 2 trailer, 4 spades, 4 steel plates, mobile phone are handed over to the Judicial Magistrate, Uthamapalayam on 23.12.2010 vide RPR No. 445/09. Hence, it deserves no consideration.
The reading of this part of the counter would indicate that all other material objects were produced before the Judicial Magistrate but two units of sand were handed over to the Tahsildar but when the entire booklet is perused nothing is found to indicate that the sand which was recovered or any part of the sand was produced before the Tahsildar. Under the circumstances, an explanation should have been called from the sponsoring authority but not done so. Under the above circumstances, the Court is of the considered opinion that both the grounds have got applied in the present case by which the order under challenge becomes infirm and it has got to be set aside.
Accordingly, the impugned 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.