Thomson @ Kuttan vs The State of Tamilndu

M. Chockalingam, J.—Challenge is made to the order of the 2nd respondent, dated 21.11.2009, whereby one Stalin, son of the petitioner,

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, terming 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, branding him as a ""Goonda"", as he was involved in three adverse cases, as detailed below,

Sl.No. Police Station & Crime Number Provisions of law

Kaliyakkavilai P.S. Cr.No.160 of 2008 u/s 341, 294(b), 323, 324,

506(ii) IPC @ 341, 294(b), 323,

324, 326, 506(i), 506(ii) r/w 34

IPC

Kaliyakkavilai P.S. Cr.No.300 of 2008 u/s 341, 294(b), 506(ii)

IPC

Kaliyakkavilai P.S. Cr.No.465 of 2009 u/s 302 IPC

and also in the ground case in Crime No. 470/2009, registered under Sections 294(b), 387, 506(ii) IPC on the file of Kaliyakkavilai Police Station

for a crime that had taken place on 31.10.2009, in which he was arrested on the very day 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 alleged detenu

was so acting in a manner 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.

At the time of advancing arguments on behalf of the petitioner, the learned Counsel urged two points. Firstly, insofar as the ground case was

concerned, no bail application was actually filed before any court of criminal law and the detaining authority has also observed so in pararaph No.

4 of the Grounds of Detention, but, however, the detaining authority has observed that there was a real possibility of the detenu coming out on bail

by filing a bail application before the same or higher court and that was without any material whatsoever. Added further the learned Counsel, there

was a long unexplained delay in consideration of the representation made on 27.01.2010, and hence on this ground also the order of detention 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.

After looking into the materials available on record and considering the submissions made on either side, the Court is of the considered opinion

that the order under challenge is infirm and hence it has got to be set aside on both the grounds urged by the learned Counsel for the petitioner.

Admittedly, the detenu was ordered to be detained under Act 14/1982 on the recommendations made by the Sponsoring Authority that he was

involved in three adverse cases and in one ground case referred to above. It is also, as could be seen from the grounds of detention, an admitted

fact that no bail application was actually made by the detenu before any criminal court of law in Crime No. 470/2009, as contended by the learned

Counsel for the petitioner. Under such circumstances, the observation made by the detaining authority that there was a real possibility of the detenu

coming out on bail and if he comes out on bail he would indulge in such activities which would be prejudicial to the maintenance of public peace

and public order cannot be based on material, much less cogent material and this expression and impression on the part of the detaining authority is

without any basis whatsoever. Added circumstance is the delay that was caused in consideration of the representation. As could be seen from the

chart placed before the Court by the learned Additional Public Prosecutor, the representation made on behalf of the petitioner, dated 27.01.2010,

was received by the Government on 01.02.2010 and though remarks were called from the detaining authority on the very next day, i.e.

02.02.2010, such remarks were received by the Government only on 17.02.2010, after a delay of 15 days. Learned Additional Public Prosecutor

would point out that there were four intervening holidays, that is to say 6th, 7th, 13th and 14th Feb.2010. Even after excluding the above four

holidays, the work period was nearly 10 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, both the grounds are available to the petitioner to set aside the order of detention impugned in the

present

Accordingly, the habeas corpus petition is allowed and the impugned order of detention in P.D. No. 53/2009, dated 21.11.2009, passed by the

2nd respondent is quashed. The detenu Stalin, S/o.Thomson @ Kuttan, is directed to be set at liberty forthwith, unless his presence, in accordance

with law, is required in connection with any other case.