Esakkimuthu vs State

M. Chockalingam, J.—Challenge is made to the order of detention of the first respondent dated 20.05.2008 made in No.

9/BDFGISSV/2008, whereby the father of the petitioner namely Thalavairaj @ Periya Lefton 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) (hereinafter referred as the Act) terming him as a ''Goonda''.

Admittedly, pursuant to the recommendations made by the sponsoring authority that the detenu was involved in the cases registered in Cr. No.

498/2007 on the file of the Pettai Police Station, under Sections 147, 341, 323, 325 r/w 34 IPC; in Cr. No. 200/2008 on the file of the Pettai

Police Station under Sections 341, 307, 302, 392, 506(ii) read with 120(b) IPC and apart from those two adverse cases, the detenu was also

involved in a case registered in Cr. No. 213/2008 on the file of the Pettai Police Station, under Sections 341, 294(b), 387, 307, 506(ii) IPC which

was shown as a ground case, the detaining authority after looking into all the materials available recorded his subjective satisfaction that the

activities of the detenu were prejudicial to the maintenance of the public order and hence he has got to be detained under the Act in order to

prevent his activities and for proper maintenance of the public order. The said order is the subject matter of challenge in this habeas corpus

petition.

Advancing his arguments on behalf of the petitioner, the learned Counsel for the petitioner would submit that the detention order was passed on

20.05.2008, but all the materials were placed before the advisory board only on 26.06.2008 and the same should have been placed within three

weeks from the date of passing the detention order, but not done so. Hence, it would be violative of legal requirements. Secondly, the second

adverse case in Cr. No. 200/2008 and also the ground case in Cr. No. 213/2008 were registered on the file of Pettai Police Station on

03.05.2008 and the occurrence were shown to have taken place on that day. But a perusal of the order under challenge would clearly indicates

that the date of occurrence pertinent to the ground case in Cr. No. 213/2008 was shown as 06.05.2008. Thus, there was a discrepancy. When

such discrepancy was noticed, the detaining authority should have called for a clarification from the sponsoring authority which had failed to do so.

Thirdly, in so far as the second adverse case and ground case were concerned bail application are pending consideration before the concerned

criminal Court. But, the detaining authority has observed in its order that there was a real possibility of the detenu coming out on bail. It was

nothing but pre-judging the order to be passed in the bail applications under consideration. Under such circumstances, there was neither

application of mind nor consideration of the circumstances properly by the detaining authority and hence it has caused prejudice to the interest of

the detenu and the detention order has to be set aside.

The Court heard the learned Additional Public Prosecutor and paid its anxious consideration on the submissions made. After doing so, this

Court is of the considered opinion that the detention order has got to be set aside on the following grounds;

(i) It is not in controversy that the detenu was involved in two adverse cases and one ground case as referred to above. The order under challenge

came to be passed on 20.05.2008. All materials must be placed before the advisory board within a period of three weeks for the purpose of

appraisement and consideration of the materials for making such an order and to take a decision either to affirm or to reject. But, in the instant

case, all the materials are placed before the advisory board only on 26.06.2008 which was made beyond the period of three weeks which would

be violative of right available to the detenu.

(ii) secondly, it is an admitted position that both the cases in Cr. Nos. 200/2008 & 213/2008 were registered by the Pettai Police Station against

the detenu for the two occurrences that took place on 03.05.2008. But, the order under challenge would indicate that the ground case was

registered on 06.05.2008. This would be indicative of the fact that when an affidavit was filed by the sponsoring authority, the date of occurrence

in the ground case was shown as 06.05.2008, if and when such discrepancy was noticed, a duty is cast upon the detaining authority to call for a

clarification from the sponsoring authority. But the detaining authority has not done so and thus, it would be indicative of non application of mind on

the part of the detaining authority.

(iii) Added circumstances is the observation made by the detaining authority in its order that there was a real possibility of the detenu coming out on

bail. Admittedly, bail applications were filed by the detenu in the second adverse case and in the ground case and the same were pending before

the Sessions Court, Tirunelveli. But, the detaining authority has pointed out in its order that there was a real possibility of the detenu coming out on

bail. It would be nothing but the detaining authority prejudging the bail applications. Under such circumstance, it could be well settled that the

observation of the detaining authority is an outcome of non application of mind.

All the above grounds, in the considered opinion of the Court, are suffice to set aside the order under challenge. Hence, this Court has made

undone by upsetting the order under challenge.

Accordingly, the Habeas Corpus Petition is allowed and the detention order No. 9/BDFGISSV/2008 dated 20.05.2008 passed by the first

respondent is quashed. The detenu is directed to be set at liberty forthwith unless his presence, in accordance with law, is required in connection

with any other case.