Pushpa vs The State of Tamil Nadu

P. Sathasivam, J.—The petitioner, who is the mother of the detenu by name Joseph, who was detained as a ''Goonda'' as contemplated

under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders,

Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) by the impugned detention order dated 22.06.2005, challenges the

same in this Petition.

Heard learned counsel for the petitioner as well as learned Government Advocate for the respondents.

At the foremost, learned counsel appearing for the petitioner, by drawing our attention to paragraph 4 of the grounds of detention, would

contend that the detaining authority has noted that the detenu Joseph was in remand in C4 Thuraipakkam Police Station in Crime Nos. 385/2005

and 387/2005 and that he has not moved any bail petition so far. In the absence of any material that the remand of the detenu in respect of Crime

No. 385/2005 was subsequently extended, the satisfaction arrived at by the detaining authority cannot be accepted and on this ground, he prays

that the impugned order is liable to be quashed.

A perusal of the paper book supplied to the detenu shows that though by an order dated 27.05.2005, the remand of the detenu was extended

till 10.06.2005 in respect of Crime No. 385/2005, there is no further order extending his remand in Crime No. 385/2005 available in the materials

placed before the detaining authority. No doubt, Crime No. 387 of 2005 relates to the adverse case and there is an order by the learned Judicial

Magistrate, Alandur, extending his remand in that case till 24.06.2005.

With regard to the said contention, learned Government Advocate, by drawing our attention to the Special Report (undated) of the sponsoring

authority, contended that inasmuch as the said report contains a reference to the remand extension even in respect of Crime No. 385/2005, the

same was taken note of by the detaining authority and the order of detention was passed. In other words, according to the learned Government

Advocate, the details furnished in the said special report are sufficient for awareness relating to the remand of the detenu on the date of passing of

the detention order. The learned Government Advocate has also heavily relied on the affidavit of the sponsoring authority dated 18.06.2005.

Before going into the Special Report, it is our duty to point out that the affidavit of the sponsoring authority dated 18.06.2005 refers to the

extension of the remand of the detenu in respect of Crime No. 387/2005 and there is absolutely no whisper about the remand in Crime No.

385/2005. By pointing out that, based on the information furnished in the report of the sponsoring authority, the detaining authority, after satisfying

himself, can very well pass an order of detention. The learned Government Advocate relied on the order of a Division Bench of this Court dated

11.10.1999 passed in HCP No. 610 of 1999. Though a similar contention was raised by the learned counsel for the petitioner in that case, the

reasonings of the detaining authority in para 14 has to be taken note of. It is seen from that paragraph that the requisition for remand was made by

the sponsoring authority, which was available at page 50 of the booklet and the special report was filed by the sponsoring authority which was

available at page 52, wherein it was clearly stated that the detenu was arrested on 14.2.1999 and produced before the Judicial Magistrate on

15.2.1999 and had been in remand till 01.03.1999. The Division Bench, after noting the above details, came to the conclusion that even though the

remand order was not before the detaining authority, the information with regard to the remand of the detenu was available before the detaining

authority for arriving at the subjective satisfaction that the detenu was in custody and as such, there was no substance in the contention of the

learned Government Advocate. Though in our case, in the undated special report, there is a reference of extension of remand in respect of Crime

No. 385/2005 as well as 387/2005, as pointed out in para 14 of the said decision, there is no material in our case to show that the detaining

authority had made a requisition for remand. On the other hand, in the case before the Division Bench, the above referred to paragraph shows that

the requisition for remand had been made by the sponsoring authority and the same was available at page 50 of the booklet. Taking note of the

said aspect and the details furnished in the special report, the Division bench concluded that those materials are sufficient for the detaining authority

to take a decision. In the light of the said factual aspect, we are of the view that the anove decision is not helpful to the stand taken by the learned

Government Advocate.

In the next decision relied on by the learned Government Advocate reported in 1994 2 LW 618 Irudhi @ Irudayanathan/C.S. Jayapal v. State

of Tamil Nadu rep. by The Commissioner and Secretary to Government, Home Prohibition and Excise Department, Fort ST Goerge, Madras-9, a

Division Bench, in para 12, after referring to Abdul Sathar Ibrahim Manik Vs. Union of India and others, , has held that awareness of the detaining

authority about the fact of remand of the detenu need not have to be based only on the remand order, for such awareness can arise out of a

remand warrant or an affidavit of the sponsoring authority or similar such material affirming the basic fact of remand of the detenu concerned on the

day when the impugned order of detention stood passed.

In the light of the above observation of the above said decision, let us consider whether those aspects have been satisfied in our case. The

booklet placed before us does not contain the remand warrant. No doubt the sponsoring authority has filed an affidavit. On going through the

same, we have already observed that even the affidavit of the sponsoring authority speaks only about Crime No. 387/2005 and there is no

reference at all to Crime No. 385/2005. Accordingly, except the special report, no other material has been placed before the detaining authority.

Even though there is a reference to Crime No. 385/2005 in the special report, it is not known what prevented the sponsoring authority in supplying

the remand extension order in respect of Crime No. 385/2005. In such circumstances, we are of the view that even the said decision is not helpful

to the stand taken by the learned Government Advocate.

On the other hand, learned counsel appearing for the petitioner has brought to our notice the decision of another Division Bench reported in

1994 1 LW 266 Balaraman v. State of Tamil Nadu rep. by The Secretary, Prohibition and Excise Department, Fort ST. George, Madras-9 and

Anr. wherein the Division Bench has observed that in the absence of an order of extension of remand by the Judicial Magistrate, mere reference in

the affidavit is not sufficient and finding that there was no material before the detaining authority with reference to the relevant fact that the detenu

was in remand on the date of passing the detention order, quashed the same. This decision is helpful to the stand taken by the petitioner.

The learned Government Advocate has also pressed into service another order of a Division Bench of this Court dated 03.01.2000 passed in

HCP No. 483 of 1999. Hereagain, in paragraph 4, the Division Bench has merely stated that the fact of remanding the accused in both the ground

case and the adverse case was noted in the booklet. From the said decision, we are unable to understand whether the remand order relating to the

ground case and the adverse case have been placed before the detaining authority. In the absence of such details, we are of the view that the said

decision is also not helpful to the stand taken by the learned Government Advocate.

Finally, the learned Government Advocate pressed into service another order of a Division Bench of this Court dated 26.06.2000 passed in

HCP No. 1798 of 1999. Before the Division Bench a similar contention was raised to the effect that except the special report, there was no

material on record to show that the detenu was in remand on the date of passing of the detention order. After perusing the booklet furnished to the

detenu, the Division Bench noted that page 70 of the booklet contains the special report dated 14.9.1999. We have also noted that in our case the

special report contains the details in respect of the remand of the detenu from 9.9.1999 till 23.9.1999. It also refers to the earlier details of the

remand. In the same paragraph, the Division Bench has referred to the sponsoring authority''s affidavit dated 21.09.1999. By referring to all the

details, including the affidavit of the sponsoring authority, the Division Bench came to the conclusion that the remand extension order had come into

existence before the date on which the sponsoring authority has sworn to the affidavit and rejected the said contention raised by the learned

counsel for the petitioner. For the sake of repetition, we mention that in our case, the affidavit of the sponsoring authority does not refer to the

remand extension order relating to Crime No. 385/2005.

On the other hand, in the above referred to decision, among other materials, the Division Bench had taken note of the sworn statement in the

form of the affidavit by the sponsoring authority about the remand extension order passed by the Magistrate. In the absence of such an information

relating to Crime No. 385/2005 in the form of an affidavit in our case, we are of the view that the said decision is also not applicable to the case on

hand.

In the light of what is stated above, in view of the fact that there is no material to show that the detenu was in remand even in respect of Crime

No. 385/2005, despite the said fact having been noted in paragraph 4 of the grounds of detention, we are satisfied that the contention raised by the

learned counsel for the petitioner is well founded. On this ground, the impugned order of detention is liable to be quashed.

Accordingly, the Habeas Corpus Petition is allowed and the impugned order of detention is set aside. The detenu is directed to be set at liberty

forthwith from custody unless he is required in some other case or cause.