Kalidass vs State of Tamil Nadu

M. Chockalingam, J.—This Writ Petition challenges the order of the second respondent made in M.P. No. 21/2008 dated 26.6.2008 whereby the order of the detention was passed 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) against the detenu terming him as a "Goonda", who is the brother of the petitioner herein.

Affidavit filed in support of the petition along with the Counter Affidavit filed by the State is perused. The Court heard the learned Counsel for the petitioner and also the learned Additional Public Prosecutor appearing for the State.

Admittedly, pursuant to the recommendation made by the sponsoring authority that the detenu was involved in two adverse cases viz., in Crime No. 135/2007 under Sections 302, 342, 366 r/w 120(b) IPC registered in Thanjavur Boothalur Police Station and in Crime No. 70/2008 under Sections 387 and 506(ii) IPC registered in Tiruchirappalli Ramjee Nagar Police Station and in one ground case in Crime No. 62/2008 under Sections 147, 148, 452, 302 IPC and later altered into 147, 148, 452, 302 r/w 12(b) IPC, the detaining authority, the second respondent herein, after recording his subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order, made the order under challenge that the detenu should be detained under the provisions of the Act 14 of 1982 terming him as a "Goonda" as defined under the Act.

Assailing the order of the detention, the learned Counsel appearing for the petitioner made the following submissions:

(i) Firstly, Crime No. 62/2008, the ground case, was registered on 23.3.2008 but the sponsoring authority placed his affidavit before the detaining authority only on 23.4.2008 and after a long delay i.e. nearly two months, the detaining authority passed the order under challenge on 26.6.2008. This inordinate delay would clearly snap the link between the prejudicial activities and passing of the order of the detention.

(ii) Secondly, the order of detention itself was passed only to defeat the order of bail granted by the Judicial Magistrate No. 3, Trichirappalli on 25.6.2008 wherein the detenu was directed to furnish sureties while granting bail and before it was done, the order under challenge was passed hastily on 26.6.2008 itself. Thus, it was clear that the order under challenge was passed to defeat the order of bail.

(iii) Thirdly, as could be seen from the order under challenge the detaining authority has clearly pointed out that the bail order was made by the Judicial Magistrate No. 3, Trichirappalli on 25.6.2008 and since bail was granted, there was a likelihood of the detenu coming out on bail. It was the document relied on by the detaining authority for drawing inference that there was possibility of the detenu coming out on bail. Under the circumstances, a duty is cast upon the detaining authority to give a copy of the said order to the detenu but did not do so.

(iv) Lastly, he has pointed out that by committing grave crime in public place, he created alarm and also a feeling of insecurity in the minds of the people of the area and thereby acted in a manner prejudicial to the maintenance of public order. A perusal of the materials in respect of the ground case in Crime No. 62 of 2008, reveals that the alleged occurrence took place inside the house of the deceased and hence it was neither a public place nor there was a feeling of insecurity in the minds of the people of the area and it is nothing to do with the public order.

(v) There was inordinate delay in considering the representation. Hence, On this ground also, the order has got to be set aside.

As recorded above, consequent upon the recommendation made by the sponsoring authority, the second respondent passed the order under challenge. As could be seen from the order, the detaining authority has recorded subjective satisfaction after scrutinising the materials pertaining to two adverse cases and one ground case. Admittedly, the detenu was arrested in Crime No. 62/2008, the ground case but the sponsoring authority placed affidavit before the detaining authority only 23.4.2008. Thus, there was delay of a month. Surprisingly, after the affidavit was filed, the detaining authority passed the order under challenge only on 26.6.2008 but the State had no explanation to offer in respect of the delay caused in filing the affidavit by the sponsoring authority or the delay in passing the order of detention. It is needless to say that, in such circumstances, if not explained, the delay would tend to snap the link between the alleged prejudicial activities and passing the order of detention.

Further, the detenu applied for bail in respect of the second case adverse case and also the ground case before the Judicial Magistrate No. 3, Tiruchirappalli and the same was ordered on 25.6.2008 and he was directed to furnish security to come out on bail. Even before the surety was furnished, the instant order came to be passed on 26.6.2008. Thus, it would pass in one''s mind that the order was passed in order to defeat the order of bail. Apart from that a perusal of the order under challenge would clearly indicate that since bail was granted on 25.6.2008, there was a likelihood of the detenu coming out on bail and hence, the order was passed on 26.6.2008. If to be so, the order granting bail by the Judicial Magistrate No. 3, Tiruchirappalli was a relied on document. Law of preventive detention would expect that a copy of the relied on document should be served upon the detenu but no material is available to know that whether the relied on document was served on the detenu.

Apart from the above, there was inordinate delay noticed in consideration of the representation from the particulars made available by the State. It would be quite clear that the representation was received by the detaining authority on 24.7.2008. Remarks were called for on 24.7.2008 and remarks were received only on 4.8.2008. Thus, there was nearly 11 days delay, out of which there was two intervening holidays and that delay remain unexplained. In the absence of any explanation convincing and acceptable, it would be quite clear that it would cause prejudice to the interest of the detenu.

Thus, all the above grounds of attack, in the considered opinion of the Court, would be sufficient to set aside the order of detention. Hence, 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 in accordance with law. The Habeas Corpus Petition is allowed accordingly.