Sankar vs The State of Tamil Nadu

M. Chockalingam, J.—Challenge is made to an order of detention made by the second respondent in Cr.M.P. No. 25 of 2008 dated 25.07.2008 whereby the petitioner, V. Sankar, the detenu, was ordered to be detained 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 (Tamil Nadu Act 14 of 1982) (hereinafter referred as the Act) terming him as a ''Goonda'' under the provisions of the Act.

Perused the entire materials including the order under challenge, affidavit filed in support of the application along with the grounds of attack and also the counter affidavit filed by the State.

Admittedly, pursuant to the recommendations made by the sponsoring authority that the petitioner is involved in three adverse cases namely; Cr. No. 18/2007 on the file of the Karur Vellianai Police Station, for the offence under Sections 120(b), 302 r/w 34 and 109 IPC; Cr. No. 916/2007 on the file of the Pasupathipalayam Police Station, for the offence u/s 387 IPC; Cr. No. 737/2008 on the file of the Pasupathipalayam Police Station, for the offence u/s 363 IPC and also involved in a ground case registered in Cr. No. 303/2008 on the file of the Vangal Police Station for the offence u/s 387 IPC, the detaining authority after scrutinising the materials available in entirety recorded his subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of the public order and hence he was to be detained under the Act and accordingly made the order. The same is subject matter of challenge in this habeas corpus petition.

Advancing his arguments on behalf of the petitioner, the learned Counsel for the petitioner would submit that the petitioner was arrested in respect of the third adverse case and one ground case on 28.06.2008. A perusal of the detention order would indicate that the detaining authority has observed that he was aware of the fact of remand of the detenu in Cr. No. 303/2008. But he has not stated anything about the arrest made in Cr. No. 737/2008, which is shown as third adverse case and thus, it would be quite clear that there was non application of mind on the part of the detaining authority. Added further, the learned Counsel for the petitioner would submit that a bail application was filed in the ground case and the same was also dismissed on 14.07.2008 and thereafter, no bail application was filed. While the matter stood thus, the detaining authority has pointed out in his order that there was a real possibility of the detenu might make another application for bail and there was a real possibility of the petitioner coming out on bail and the same was without any basis whatsoever. Thirdly, in the course of the representation made, it was made clear that the detenu was under illegal custody from 23.06.2008 onwards, but the arrest of the petitioner was shown as 28.06.2008. But in so far as the illegal detention was concerned though it was mentioned in the representation, it was not at all considered by the detaining authority. According to the learned Counsel for the petitioner the detention order suffers on those grounds and hence it has got to be set aside.

The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.

It is not in controversy that the petitioner was involved in three adverse cases referred to above and also one ground case in Cr. No. 303/2008 and he was arrested on 28.06.2008 in connection with the third adverse case and in connection with the ground case in Cr. No. 303/2008. When the sponsoring authority placed all the materials before the detaining authority, all the materials pertaining to the arrest in both the cases should have been placed. If to be so, the detaining authority could have made a mention of the above. But, a perusal of the order of detention would indicate that the detaining authority was aware of the remand of the detenu in Cr. No. 303/2008, the ground case and he has not stated anything about the third adverse case namely in Cr. No. 737/2008. Hence it would be quite clear that either all the materials were not placed before the sponsoring authority or the detaining authority has not applied his mind before passing the order in that regard. Admittedly, the bail applications filed by the detenu in respect of the ground case was dismissed by the Judicial Magistrate, Karur on 14.07.2008 itself and no bail application either filed or pending before the Court of criminal jurisdiction thereafter. But, the detaining authority has pointed out that the detenu might make another application for bail and he could have come out on bail. This actually indicate the apprehension in the minds of the detaining authority without any material or basis whatsoever. It was nothing but prejudging or in anticipation of an application to be filed by the detenu in future. So far as the third ground of attack is concerned, admittedly, there was a representation made in the course of which it has been clearly alleged that the detenu was in illegal custody from 23.06.2008 onwards, but the date of arrest of the detenu was shown as 28.06.2008. When such a representation as to illegal custody was made, the detaining authority has to look into the same and consider the allegations so as to arrive at a correct decision. But in the instant case, there is nothing to indicate that the detaining authority has considered the alleged illegal detention of the detenu from 23.06.2008 onwards till the time of arrest i.e. On 28.06.2008. Under such circumstances, this also would be indicative of non application of mind and the non consideration of the alleged illegal detention. Thus, in the considered opinion of the Court it would directly affect the order of detention. Under such circumstances, all the above grounds are suffice to set aside the order under challenge. Hence, this Court has made undone by upsetting the order under challenge.

Accordingly, the Habeas Corpus Petition is allowed and the detention order Cr.M.P. No. 25 of 2008 dated 25.07.2008 passed by the second respondent is quashed. The detenu is directed to be set at liberty forthwith unless his presence, in accordance with law, is required in connection with any other case.