Panchavarnam 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 the order of the second respondent made in Cr.M.P. No. 16/2010 (SAND OFFENDER) dated 20.03.2010 whereby the petitioner''s husband by name Muppidari @ Pandikalai was ordered to be detained under the provisions of 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, terming him as a "Sand Offender''.

This Court heard the learned Counsel for the petitioner and looked into all the materials available, in particular, the order under challenge.

It is not in controversy that pursuant to the recommendations made by the Sponsoring Authority that the alleged detenu was involved in six adverse cases, as detailed below,

Sl. No Police Station & Crime Number or Provisions of law Compounding Order No. & Date 1. Compounding Order of the u/s 23(A)(1) of Mines and Revenue Divisional Officer, Minerals (Development Sivakasi issued in his Proceedings and Regulation) Act, in C. No. B4/1196/2007 dated 1957. 07.02.2007 2. Compounding Order of the u/s 23(A)(1) of Mines and Revenue Divisional Officer, Minerals (Development Sivakasi issued in his Proceedings and Regulation) Act, in C. No. B4/9800/2008 dated 1957. 09.01.2009. 3. Compounding Order of the u/s 23(A)(1) of Mines and Revenue Divisional Officer, Minerals (Development Sivakasi issued in his Proceedings and Regulation) Act, in C. No. B4/1671/09 dated 1957. 26.03.2009. 4. Compounding Order of the u/s 23(A)(1) of Mines and Revenue Divisional Officer, Minerals (Development Sivakasi issued in his Proceedings and Regulation) Act, in C. No. B4/5046/09 dated 1957. 12.08.2009 5. Compounding Order of the u/s 23(A)(1) of Mines and Revenue Divisional Officer, Minerals (Development Sivakasi issued in his Proceedings and Regulation) Act, in C. No. B4/5557/09 dated 1957. 12.09.2009 6. Compounding Order of the u/s 23(A)(1) of Mines and Revenue Divisional Officer, Minerals (Development Sivakasi issued in his Proceedings and Regulation) Act, in C. No. B4/6624/09 dated 1957. 24.11.2009

and also in the ground case in Crime No. 165 of 2010 registered u/s 21(1)(5) of Mines and Minerals (Development and Regulation) Act, 1957 r/w Rule 36(A) of Tamil Nadu Mines and Minerals Concession Rules, 1959 and under Sections 3 and 4 of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 and under Sections 379, 353 and 307 IPC on the file of Srivilliputhur Town Police Station for an occurrence that had taken place on 11.03.2010, on scrutiny of the materials placed before 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, branded him as a "Sand Offender" and ordered him to be detained under the Tamil Nadu Act, 14 of 1982, which is the subject matter of challenge before the Court.

Advancing arguments on behalf of the petitioner, the learned Counsel inter alia raised two grounds. Firstly, there was a post detention representation made by the detenu on 23.03.2010 for which remarks were called for, and though the Minister for Law dealt with the same on 12.04.2010, the rejection letter was prepared only on 21.04.2010 and thus there was a delay of 9 days, which remain unquestioned and it has caused prejudice to the interest of the detenu, and secondly, the detenu has not moved any bail application before any Court of criminal law in the ground case referred to above and the Detaining Authority has not referred to such situation as to whether there was any possibility of the detenu coming out on bail, but the Detaining Authority has simply stated that the detenu was to be prevented from involving in such activities in future, and thus it is quite clear that the Detaining Authority could not have recorded its subjective satisfaction before taking a proper decision in the matter and hence the detention order passed by the second respondent has got to be set aside.

The Court heard the learned Additional Public Prosecutor for the State on the above contentions put-forward by the counsel for the petitioner.

It is not in controversy that the order of detention under challenge came to be passed by the second respondent on the recommendations made by the Sponsoring Authority that the detenu was involved in six adverse cases and one ground case, referred to above. As can be seen from the materials placed by the State, the post-detention representation which was made by the detenu on 23.03.2010 was received by the Detaining Authority on 30.03.2010, remarks were called for on 31.03.2010, remarks were received on 07.04.2010 and the Minister for Law dealt with the same on 12.04.2010, but the rejection letter was prepared only on 21.04.2010. Thus there was an intervening gap of 9 days between the decision taken by the Minister for Law and preparation of the rejection letter. It is brought to the notice of the Court by the learned Counsel for the State that 14.04.2010, 17.04.2010 and 18.04.2010 were holidays. Even after excluding the above three holidays, for the remaining period of six days, the State has not put forth any explanation, which would no doubt, cause prejudice to the interest of the detenu and would suffice to vitiate the order of detention.

Apart from the above, the detenu has not moved any bail application in any Court of criminal law insofar as the ground case is concerned. Paragraph-5 of the order of detention reads as follows:

I am aware that Thiru. Muppidari @ Pandikalai, has been remanded to judicial custody upto 25.03.2010 in Central Prison, Madurai in connection with Srivilliputhur Town Police Station Cr. No. 165/2010. He has already committed illicit quarrying and transportation of sand in six times and remitted fine amount. Evenafter the said six cases he has not mended his way again he committed crimes of illicit quarrying and transportation of sand in the seventh ground case and also attempted to murder the Government officials. If deterrent action may not be taken against him, he will indulge in future activities, which will be prejudicial to the maintenance of public order. Further the recourse to the normal Criminal Law could not have the desired effect of effectively preventing him from indulging in such activities, which will be prejudicial to the maintenance of public order. On the materials placed before me, I am satisfied that the said Thiru. Muppidari @ Pandikalai is a "SAND OFFENDER" and as such, there is a COMPELLING NECESSITY to detain him in order to prevent him from indulging in such further activities in future, which are prejudicial to the maintenance of public order.

On a reading of the above, it is quite clear that nowhere in the order there was any reference as to whether the detenu has made any bail application or not and whether there was any imminent or real possibility of the detenu coming out on bail, but the Detaining Authority has stated that the detenu will indulge in future activiites, which will be prejudicial to the maintenance of public order. There is no question of the detenu involving himself in any such activities in future, when he is in jail. Therefore, it is quite clear that the Detaining Authority has not applied its mind as to whether there was any possibility of the detenu coming out on bail or not.

Hence, on the above two grounds, the order of detention passed by the second respondent is liable to be set aside. Accordingly, the habeas corpus petition is allowed and the impugned order of detention in Cr.M.P. No. 16/2010 dated 20.03.2010 passed by the second respondent is set aside. The detenu Muppidari @ Pandikalai, S/o Mariappan @ Davusar Mariappan, is directed to be set at liberty forthwith, unless his presence is required in connection with any other case.