Guna @ Gunasekaran vs State of Tamil Nadu

M. Chockalingam, J.—This Writ Application challenges the order of the second respondent made in C.P.O/T.C./I.S/D.O. No. 33/2008

dated 16.7.2008 whereby the detenu 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 including the order under challenge.

Pursuant to the recommendation made by the sponsoring authority that the detenu was involved in five adverse cases viz., Crime No. 234/2006

u/s 457 and 380 IPC registered by Thanjavur East P.S.; Crime No. 261/2006 u/s 379 r/w 75 IPC registered by Thanjavur East P.S.; Crime No.

17/2008 u/s 457 and 380 IPC registered by Srirangam Police Station; Crime No. 60/2008 under Sections 457 and 380 IPC registered by

Srirangam Police Station; Crime No. 192/2008 under missing altered into Section 379 of the IPC registered by Srirangam P.S. and in one ground

case in Crime No. 306/2008 under Sections 392 and 506(ii) of the IPC registered by Srirangam Police Station, after looking into the materials

available, the detaining authority recorded his subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public

order and that he should be detained as a ""Goonda"" and accordingly, made the order of detention, which is the subject matter of challenge before

this Court.

Advancing his arguments, learned Counsel for the petitioner has brought to the notice of the Court the following grounds:

(i) Insofar as the ground case in Crime No. 306/2008, the detenu moved a bail application in C.M.P. No. 3884/2008 before the Judicial

Magistrate No. III, Tiruchirappalli and the same was pending consideration. Insofar as the three adverse cases, he had not filed any bail application

at all. But the detaining authority has stated in its order that there was a real possibility of the detenu coming out on bail by filing bail applications for

the others cases. This observation was made without any material or basis whatsoever. It was only an apprehension in the mind of the detaining

authority. Under the circumstances, it would affect the order of detention.

(ii) Secondly, there was delay in consideration of the representation. Representation was received on 23.9.2008; remarks were called for on

24.9.2008 but the remarks were only received on 10.10.2008. Thus, there were 16 days delay, out of which, there were 8 days holidays and the

remaining 8 days delay remain unexplained. Under the circumstances, it would cause prejudice to the interest of the detenu. Hence, the order of

detention has got to be set aside.

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 the detenu was involved in five adverse cases and in one ground case or in one ground case in Crime No. 306/2008

registered by Srirangam Police Station. As stated above, the detenu filed bail application in C.M.P. No. 3884/2008 before the Judicial Magistrate

No. III, Tiruchirappalli and the same was pending consideration. Insofar as the three adverse cases, he had not filed any bail application at all at

the time when the order of detention came to be passed on 16.7.2008. But the detaining authority has stated in its order that there was a real

possibility of the detenu coming out on bail by filing bail applications for the others cases. This observation was made without any material or basis

whatsoever. It was only an apprehension in the mind of the detaining authority. Mere apprehension in the mind of the detaining authority would not

be sufficient for passing the order of detention but there must be specific or at least reasonable material but in the instant case, nothing is available.

Insofar as the delay is concerned, as rightly pointed out by the learned Counsel for the petitioner, there was delay of 8 days as stated above,

which remain unexplained. In the considered opinion of the Court, it would be pointing to the fact that the authorities lack promptitude in

considering the representation of the detenu.

On the two grounds referred to above, 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 he is required in connection with any other case. The Habeas Corpus Petition is allowed.