Seeniammal vs The Secretary to Government, Home, Prohibition and Excise Department and The Commissioner of Police

M. Chockalingam, J.—Challenge is made to the order of the 2nd respondent, dated 24.10.2009, whereby the petitioner''s husband by name Veeraperumal, was ordered to be detained under the 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, branding him as a "Goonda''.

The affidavit and the materials filed in support of the petition, in particular the order under challenge, are looked into. The Court heard the learned Counsel for the petitioner.

It is not in controversy that pursuant to the recommendations made by the Sponsoring Authority that the alleged detenu was to be detained under Tamil Nadu Act 14 of 1982, as he was involved in four adverse cases, as detailed below,

Sl. No. Police Station & Crime Number Provisions of law 1. Theni District Kandamanur Police Station Under Sections 147, 148, 341, 302 & 506(ii) Cr. No. 27/2009 IPC 2. C5 Karimedu (Crime) Police Station u/s 379 IPC Cr. No. 1538/2008 3. C5 Karimedu (Crime) Police Station Under Sections 545, 380 IPC Cr. No. 1227/2009 4. C5 Karimedu (Crime) Police Station u/s 392 read with 397 and 506(ii) IPC Cr. No. 1547/2009

and also in the ground case in Crime No. 1558/2009, registered under Sections 392 read with 397 and 506(ii) IPC on the file of C5 Karimedu (Crime) Police Station for a crime that had taken place on 19.09.2009, in which he was arrested and remanded to judicial custody, on scrutiny of the materials placed before him, the detaining authority, the 2nd respondent herein, after recording his subjective satisfaction that the activities of the alleged detenu were prejudicial to the maintenance of public order, branded him as a "Goonda" and ordered him to be detained under Tamil Nadu Act, 14 of 1982, which is the subject matter of challenge before the Court.

Advancing arguments on behalf of the petitioner. learned Counsel made the following submissions, which, according him, are strong grounds to set aside the impugned order of detention.

(i) The order of detention came to be passed on 24.10.2009 and as per the mandate it should be served upon the detenu within five days but, it was actually served on 11.12.2009 and thus there was a long interval, which remain unexplained and even there is no reference in any one of the materials to indicate that the same was served within the stipulated period. Learned Counsel would further add that the reply given by the respondents in the counter filed to this petition is that at the time when the order was sought to be served within the stipulated time, the detenu refused to receive the same and hence the delay has happened but, no material has been placed before this Court to substantiate the same.

(ii) When the order of detention came to be passed on 24.10.2009, the detenu was remand in two cases, namely in the 4th adverse case in Crime No. 1547/2009 as well as in the ground Case Crime No. 1558/2009 and the bail applications moved in both the cases were pending consideration before the learned Sessions Judge, Madurai and the detaining authority has also mentioned about the pendency of such bail applications but, even then, the detaining authority has observed that there was most likelihood of the detenu coming out on bail in both the cases and this was only mere apprehension in the mind of the detaining authority without any basis or material, much less cogent material.

(iii) Learned Counsel would further add that the detenu was arrested in the ground case on on 19.09.2009 at 11.00 a.m. and the alleged confessional statement given by him was recorded at 12.00 Noon as if he was involved in all the cases in which the name of the accused was not shown and thereafter, as per the prosecution, the materials involved in all the cases were recovered pursuant to the alleged confessional statements of the detenu on the same day and produced before the Court at 7.30 p.m., which was humanely impossible and under such circumstances, naturally, the detaining authority should have called for a clarification from the sponsoring authority but the authority has failed to do so.

(iv) As the last ground, according to the learned Counsel, there was delay, which remain unexplained, in consideration of the representation made on behalf of the detenu.

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

After looking into the materials available on record and considering the submissions made on either side, the Court has to necessarily agree with the learned Counsel for the petitioner and the impugned order of detention has got to be set aside.

It is not in controversy that the detenu was ordered to be detained under Act 14/1982 on the recommendations made by the Sponsoring Authority that he was involved in four adverse cases and in one ground case referred to above. It is true that five cases were registered against the detenu, namely four adverse cases and one ground case. Admittedly, the order under challenge came to be passed on 24.10.2009 and the same was served on the detenu on 11.12.2009. As per the legal mandate, it should have been served upon the detenu within a period of five days. In the instant case, though it is contended by the learned Counsel for the State that when it was sought to be served on the detenu within the stipulated time, the detenu refused to receive the same, no material whatsoever was placed before the Court to accept the same and not even an endorsement as to the refusal was made by the officer concerned. In such circumstances, the said contention of the learned Counsel for the State cannot be countenanced.

Coming to the 2nd contention raised by the learned Counsel, admittedly bail applications were pending consideration by the learned Sessions Judge, Madurai, in Crime No. 1547/2009, the 4th adverse and and Crime No. 1558/2009, the ground case when the detention order came to be passed. Relevant portion in paragraph 5 of the grounds of detention reads as follows:

I am aware that Tr. Veeraperumal, s/o. Narayanasamy Naicker, is in remand in the adverse case in C5 Karimedu (Crime) PS Cr. No. 1547/2009 and the ground case in C5 Karimedu (Crime) PS Cr. No. 1558/2009 at the Central Prison, Madurai. Further, Tr. Veeraperumal s/o Narayanasamy Naicker has filed bail application in the three adverse cases ie., Kandamanur PS Cr. No. 27/2009, C5 Karimedu (Crime) PS Cr. No. 1538/2009, C5 Karimedu (Crime) PS Cr. No. 1227/2009 and obtained bail in these cases already. Moreover, the bail application filed on behalf of Tr.Veeraperumal S/o.Narayanasamy Naicker in one of the adverse case in C5 Karimedu (Crime) PS Cr. No. 1547/2009 and in the ground case in C5 Karimedu (Crime) PS Crime) PS Cr. No. 1558/2009 in which he is in remand, before the District and Sessions Judge, Madurai are pending for disposal. Hence, I am also aware that there is a Most likely of his coming out on bail through the pending bail application in the above adverse case and the ground case in which he is in remand, since in similar cases bail are granted by the concerned Court on Higher Court....

From the reading of the above, it would be quite clear that bail applications were pending consideration before the Court of Sessions, Madurai, on the date when the detention order came to be passed. Under such circumstances, the observation made by the detaining authority that it is most likely of the detenu coming out bail cannot be based on any material, much less cogent material which law would expect before coming to subjective satisfaction.

Added further, in the instant case, as rightly contended by the learned Counsel for the petitioner, there is delay in consideration and disposal of the representation made on behalf of the detenu. As could be seen from the chart placed before the Court by the learned Additional Public Prosecutor, the representation made on behalf of the detenu, dated 25.11.2009, was received by the Government on 01.12.2009 and though remarks were called for from the detaining on the very day, such remarks were received by the Government only on 08.12.2009, after a delay of seven days. Learned Additional Public Prosecutor would point out that there were two intervening holidays, that is to say 5th and 6th December, 2009. Even after excluding the above two holidays, the work period was nearly five days and the State has no explanation to offer and the delay has caused prejudice to the interest of the detenu. In the considered opinion of the Court, the above three grounds are available to the petitioner to set aside the order of detention impugned in the present petition.

Accordingly, the habeas corpus petition is allowed and the impugned order of detention in No. 77/BDFGISSV/2009, dated 24.10.2009, passed by the 2nd respondent is quashed. The detenu Veeraperumal, son of Narayanasamy Naicker, is directed to be set at liberty forthwith, unless his presence, in accordance with law, is required in connection with any other case.