N. Nagarajan vs State of Tamil Nadu

R. Banumathi, J.—In this Habeas Corpus Petition, the Petitioner challenges the order of detention, dated 13.11.2008, clamped on him by the 2nd Respondent, branding him as a "Goonda", 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 (in short "Tamil Nadu Act 14/1982).

The Detenu had earlier come to adverse notice in three cases, as detailed below.

-------------------------------------------------------------------------------- Sl. No. Police Station and Crime No. Provisions of Law -------------------------------------------------------------------------------- 1 Kariapatti P.S.Cr. No. 406/2005 u/s 457, 380 IPC -------------------------------------------------------------------------------- 2 Aruppukottai Taluk P.S. Cr. No. 38/2006 u/s 379 and 75 IPC -------------------------------------------------------------------------------- 3 Kariapatti P.S.Cr. No. 274/2007 u/s 379 IPC --------------------------------------------------------------------------------

The ground case in Crime No. 333/2008 u/s 397 IPC on the file of Kariapatti Police Station relates to the occurrence on 20.09.2008. On being satisfied that the Detenu is habitually committing crimes and also acting in a manner prejudicial to the maintenance of public order and as such he is a "Goonda" and if the Detenu comes out on bail he will indulge in future activities, which will be prejudicial to the maintenance of public order, the 2nd Respondent passed the impugned order of detention.

Even though several contentions were raised and argued as well, learned Counsel for the Petitioner confined his arguments as to non-consideration of the representation, dated 19.11.2008, preferred by the wife of the Petitioner, by the Detaining Authority before the Detention Order was approved by the State Government. By drawing our attention to the Grounds of Detention, learned Counsel for the Petitioner submitted that in paragraph No. 6 of the Grounds of Detention, the Detaining Authority has specifically indicated that the Detenu has a right to make a representation in writing against the order by which he was kept under detention to the Detaining Authority and if any such representation in writing against the detention order was made to the Detaining Authority and if any such representation was received by the Detaining authority within 12 days before the approval of the Government, the said representation would be duly considered by the Detaining Authority but, in the counter affidavit filed by the Detaining Authority while admitting the receipt of the representation dated 19.11.2008 on 20.11.2008, the Detaining Authority has only stated that upon receiving remarks from the Sponsoring Authority a report was sent to the Government on 24.11.2008 and there is no whisper as to the consideration of the representation by himself before approval. Therefore, learned Counsel for the Petitioner would contend that non consideration of the representation received by the Detaining Authority within 12 days before the approval of the Governments, as indicated in the grounds of detention, would have the effect of vitiating the order of detention.

We have heard the learned Additional Public Prosecutor on the above said contention.

In the instant case, the Detention Order is dated 13.11.2008. In the grounds of detention, in paragraph No. 6 the Detaining authority has specifically indicated that if any representation received by him within 12 days before the approval of the detention order by the Government, such representation would be duly considered by him.

It is admitted in the counter affidavit filed by the Detaining authority that the representation, dated 19.11.2008, made by the wife of the Petitioner was received on 20.11.2008. In paragraph 2(d) & (e) of the counter, it is further averred that such representation was duly considered by the Detaining Authority expeditiously. Except the above vague reply, there is no particulars as to when the said representation was considered by the Detaining Authority and result of such consideration was communicated to the wife of the Petitioner. A further perusal of the counter indicates that upon receiving remarks from the Sponsoring Authority on 24.11.2008, a report alone was sent to the Government on the same day. In such circumstances, it is to be presumed, as contended by the learned Counsel for the Petitioner, the representation made by the wife of the Petitioner on 19.11.2008 and received by the Detaining Authority on 20.11.2008 was not considered by the Detaining Authority as indicated in the grounds of detention. Having received the representation well in advance (on 20.11.2008), the Detaining authority, who has independent power to revoking the order of detention ought to have considered the representation and discharged his obligation as envisaged in paragraph No. 6 of the Grounds of Detention. Absence of any document showing consideration of the representation, dated 19.11.2008, by the Detaining would have the effect of vitiating the Detention Order.

Contending that non-consideration and disposal of the representation moved before the Detaining Authority would have the effect of vitiating the detention order, learned Counsel for the Placed reliance upon the decision of this Court reported in 2008 (2) T.N.L.R. 94 (Mad)(MB) - Arumugam v. The State of Tamil Nadu and Ors.. In similar factual situation of non-consideration of representation by the Detaining Authority, the Division Bench held that non-discharge of his mandatory obligation promptly as envisaged in the grounds of detention vitiates the order of detention.

For the aforesaid reasons, the Habeas Corpus Petition is allowed and the impugned order of detention in Cr.M.P. No. 28/2008 (Goonda), dated 13.11.2008, passed by the 2nd Respondent, is quashed. The Detenu N. Nagarajan is directed to be released forthwith, unless his presence is required, in accordance with law, in connection with any other case.