M. Pandi vs The Secretary to Government, Home, Prohibition and Excise Department, The District Magistrate and District Collector, The Superintendent of Prison and The Secretary, Advisory Board

M. Chockalingam, J.—This Writ Application challenges an Order of Detention made by the second respondent on 29.1.2010 whereby the son of the petitioner, by name, Mayandi, 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 Madurai District, 3(a), 4(b) of Indian Karuppaurani, Police Explosive Substances Station Act, 1980 Crime No. 234/2009 2 Suthamalli Police Station 147, 148, 341, 302, 506(ii) Indian Penal Crime No. 159/2009 Code read with 149, 34, 120(b) Indian Penal Code and Section 3(2)(V) Scheduled Caste and Scheduled Tribes and Prevention of Atrocities Act 1989 and 3(b), 4(b), 5(A) read with 6 Explosive Substances Act 1908 read with 120(b) Indian Penal Code and 25(1-A) Arms Act 1959 read with 120(b) Indian Penal Code

Apart from that, the detenu was involved in one ground case registered by Suthamalli Police Station in Crime No. 261/2009 under Sections 120(b), 307, and 511 of the IPC for the occurrence that took place on 23.12.2009.

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.

Mr. R. Alagumani, learned Counsel for the petitioner, raised two points for consideration of the Court:

(i) Firstly, the detenu has not filed any bail application in the ground case and apart from that the detaining authority has not stated whether there is any real or imminent possibility of the detenu coming out on bail in the order of detention and thus, it would be an indicative of the fact of non-application of mind before recording its subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order.

(ii) Secondly, the law would mandate that all those materials along with the order of detention should be placed before the Advisory Board within a period of three weeks from the date of causing the order of detention but in the instant case that was not done and no reply was forthcoming in this regard from the State and under the circumstances, the order of detention has got to be set aside.

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

Insofar as the first ground is concerned, the Court is satisfied that the ground urged by the learned Counsel for the petitioner is sufficient to set aside the order of detention. In the instant case, paragraph No. 6 of the order reads as follows:

I am aware that Thiru. Mayandi is in remand in Suthamalli Police Station Crime Number 261/2009 and he has not moved any bail application so far in this case. To restrict him from indulging activities in future, which will be prejudicial to the maintenance of the public order, it is necessary that he has to be kept in judicial custody. 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 the public order. On the materials placed before me, I am satisfied that Thiru.Mayandi is a "Goonda" and there is a compelling necessity to detain him in order to prevent him from indulging in acts which are prejudicial to the maintenance of public order under the provisions of the Tamil Nadu Act 14 of 1982.

It is quite clear that, the detenu has not moved any bail application before any Court of criminal law. Apart from that, in the instant case, the detaining authority has not even stated whether there was any real or imminent possibility of the detenu coming out on bail. In a given circumstances like this, before recording subjective satisfaction that the detenu would indulge in such activities prejudicial to the maintenance of public order in future, the detaining authority should have sufficient materials. In the instant case, no material is available, muchless cogent material. Under the circumstances, it would be an indicative of the fact of non-application of mind on the part of the detaining authority. Thus, the order of detention, which is under challenge, fails and the same is liable 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.