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Judgment
M. Chockalingam, J.—Challenge is made to the order of the 1st respondent, dated 31.12.2009, whereby the petitioner''s husband by name Selvam, was ordered to be detained under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982, branding him as a "Goonda''.
The affidavit and the materials filed in support of the petition, in particular the order under challenge, are looked into. The Court heard the learned Counsel for the petitioner.
It is not in controversy that pursuant to the recommendations made by the Sponsoring Authority that the alleged detenu was to be detained under Tamil Nadu Act 14 of 1982, as he was involved in five adverse cases, as detailed below,
---------------------------------------------------------------------------------------- Sl. No. Police Station & Crime Number Provisions of law ---------------------------------------------------------------------------------------- 1. Virudhunagar P.S. Cr. No. 62/2006 u/s 379 IPC ---------------------------------------------------------------------------------------- 2. Virudhunagar East PS Cr. No. 29/08 Under Sections 457, 380 IPC ---------------------------------------------------------------------------------------- 3. Pudur P.S. Cr. No. .45/09 Under Sections 457, 380 IPC ---------------------------------------------------------------------------------------- 4. Pudhur P.S. Cr. No. 61/09 Under Sections 457 and 380 IPC ---------------------------------------------------------------------------------------- 5. Vilathikulam P.S. Cr. No. 283/2009 u/s 392 IPC
and also in the ground case in Crime No. 298/2009, registered under Sections 294(b), 392, 506(ii) IPC on the file of Vilathikulam Police Station for a crime that had taken place on 14.11.2009, in which he was arrested on the very day and remanded to judicial custody, on scrutiny of the materials placed before him, the detaining authority, the 1st respondent herein, after recording his subjective satisfaction that the activities of the alleged detenu were prejudicial to the maintenance of public order, branded him as a "Goonda" and ordered him to be detained under Tamil Nadu Act, 14 of 1982, which is the subject matter of challenge before the Court.
Advancing arguments on behalf of the petitioner, learned Counsel raised two contentions before the Court which, according to him, are sufficient to set aside the order of detention under challenge. Firstly, insofar as all the adverse cases as well as the ground case are concerned, no bail application was filed or pending before any court of criminal law but, the detaining authority has mentioned in paragraph No. 4 of the grounds of detention that there was a real possibility of the detenu coming out on bail, which, according to the learned Counsel, shows non-application of mind on the part of the detaining authority and the same vitiates the order of detention. Secondly, learned Counsel would contend that in the ground case the detenu was arrested on 16.11.2009 but, the remand order was not given to him and though it was raised as a ground in the petition, at the time of filing counter and serving the same upon the petitioner, the remand order copy was served and that would not satisfy the legal requirement because it was one of the documents which was relied upon by the detaining authority while passing the detention order and hence it has got to be set aside on this ground also.
The Court heard the learned Additional Public Prosecutor for the State on the above contentions put-forward by the counsel for the petitioner.
After looking into the materials available on record and considering the submissions made on either side, the Court has to necessarily agree with the learned Counsel for the petitioner and the impugned order of detention has got to be set aside.
It is not in controversy that the detenu was ordered to be detained under Act 14/1982 on the recommendations made by the Sponsoring Authority that he was involved in five adverse cases and in one ground case referred to above. It is true that six cases were registered against the detenu, namely five adverse cases and one ground case. Relevant portion in paragraph 4 of the grounds of detention reads as follows:
I am aware that Thiru.Selvam has been remanded to judicial custody by Judicial Magistrate, Vilathikulam from 16.11.09 to 30.11.09. His remand period has been extended till 12.01.2010. He is a remand prisoner lodged in the Central Prison, Palayamkottai. I am aware that he has not filed a bail application in any of the cases. But there is a real possibility of his coming out on bail by filing bail application before the same court or higher court. If he comes out on bail, he will indulge in further activities, which will be prejudicial to the maintenance of public order....
From the reading of the above, it would be quite clear that the detenu has not moved any bail application in all the cases i.e. five adverse cases and the ground case and though detaining authority has stated in the grounds of detention, yet he has observed that there was a real possibility of the detenu coming out on bail without any material, much less cogent material, which law would require.
Coming to the 2nd contention raised by the learned Counsel that no remand order copy in the ground case was furnished to the detenu, admittedly the detenu was arrested on 16.11.2009, produced before the Judicial Magistrate, Vilathikulam and remanded to judicial custody on the very day but, remand order copy was not served upon him. In a given case like this, when certain documents are relied upon by the detaining authority, copies of those documents must be served upon the detenu and then only the detenu could understand what made the detaining authority to record his subjective satisfaction as to the compelling necessity for detaining him under preventive detention. In the instant case, the remand order copy in the ground was not served which would be quite evident in view of service of the same along with a copy of the counter filed by the State in this petition. Under such circumstances, the order impugned becomes defective and liable to be set aside.
Accordingly, the habeas corpus petition is allowed and the impugned order of detention in No. H.S.(MD) Confdl. No. 47/2009, dated 31.12.2009, passed by the 1st respondent is quashed. The detenu Selvam, son of Chandran, is directed to be set at liberty forthwith, unless his presence, in accordance with law, is required in connection with any other case.