S. Kannammal vs The State of Tamil Nadu

P. Sathasivam, J.—The petitioner, who is the mother of the detenu by name Viji @ Kulla Vijayan, who is 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

09.02.2006, challenges the same in this Petition.

Heard the learned Counsel for the petitioner as well as the learned Additional Public Prosecutor for the respondents.

At the foremost, learned Counsel for the petitioner, after taking us through paragraph 5 of the grounds of detention, has contended that though

the detaining authority has heavily relied upon the orders passed in the bail applications filed in the adverse cases, according to the counsel for the

petitioner, except making a general statement, neither the detaining authority possessed of those orders nor supplied to the detenu, which vitiates

the ultimate detention order passed by him.

In paragraph 5 of the grounds of detention, the detaining authority has stated that the detenu viz., Viji @ Kulla Vijayan has been remanded to

judicial custody in the ground case on 31.01.2006 and he is still in Central Prison, Salem, as a remand prisoner. In the same paragraph, the

detaining authority has expressed that, he is also aware that no bail application has been filed by him or on his behalf so far. But the likelihood of his

filing a bail application in the near future, cannot also be ruled out because, in the adverse cases, he had filed bail applications and granted bail. But

pointing out the same, the learned Counsel for the petitioner has contended that inasmuch as, the detaining authority relied on the orders passed in

the bail applications filed in the adverse cases, it is but proper, those orders to be placed before him and the copies must be supplied to the detenu.

In the absence of such recourse, according to him, the detention order is liable to be quashed. In support of the above claim, he relied on the

decision of this Court dated 11.07.2006 rendered in HCP 429 of 2006.

As against the above contention, the learned Additional Public Prosecutor has submitted that there is no need to supply copy of the bail petition

or bail order to the detenu, since the same was not relied on by the detaining authority. The general preposition is that there is no need to supply

copy of the bail petition or bail order to the detenu. However, in the case on hand, as observed earlier in para 5, while taking subjective

satisfaction, the detaining authority has specifically stated that, in view of the orders passed in the bail applications in adverse cases, the detenu is

likely to file bail application in the ground case and orders would be passed and in such event, he will indulge in such prejudicial activities in future

as well. The reference made in paragraph 5 of the grounds of detention, as rightly pointed out by the learned Counsel for the petitioner shows that

the detaining authority heavily relied on the orders passed in the bail applications relating to adverse cases. In such special circumstances, it is but

proper that those orders to be placed before the detaining authority and copies to be supplied to the detenue. In Sunila Jain Vs. Union of India

(UOI) and Another, (2006) 2 S C C 90 (Sunila Jain v. Union of India and Anr.), the following statement in para 12 of their order is relevant,

which reads as under:

The question as to whether an offence is bailable or not is not a vital fact whereupon an order of bail can be passed. Application of mind to the

averments made in a bail application may be relevant where the grounds stated therein reveal certain facts which are vital for passing an order of

detention. In a case of such nature, it may be said that the application for bail was necessary to be placed before the detaining authority and non-

furnishing a copy thereof to the detenu would vitiate the order of detention.

The above decision of the Supreme Court makes it clear that in the grounds of detention, if there is specific reference to bail application and the

orders passed therein, it is clear that the application for bail was necessary to be placed before the detaining authority and non-furnishing of a copy

thereof to the detenu would vitiate the order of detention. Similar view has been expressed in HCP No. 429 of 2006 dated 11.07.2006.

In the light of the legal position as stated above and in view of the infirmity in paragraph 5 of the detention order as explained above, we are of

the view that the detention order cannot be sustained. In these circumstances, the detention order is liable to be quashed and accordingly, the same

is quashed.

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