Gurunathan vs State and The Secretary, Government of Tamil Nadu, Prohibition and Excise Department

M. Chockalingam, J.—The petitioner is the sister''s husband of the detenu. Challenge is made to the order of the first respondent in H.S.(M) Confdl. No. 15/2008 dated 9.4.2008 whereby 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) terming him as a "Goonda".

The Court heard the learned Counsel for the petitioner and also Learned Additional Public Prosecutor for the respondents.

At the outset, the Court has to point out that though the petition came to be admitted on 16.9.2008, no counter has been filed by the State and the matter has been pending for the past seven months.

All the materials are looked into and in particular, the order under challenge, which was made pursuant to the recommendation made by the sponsoring authority that the detenu was involved in Crime No. 61/2008 u/s 294(b) and 506(2) IPC registered in Veervanallur P.S; Crime No. 23/2008 under Sections 447, 294(b), 341, 307 and 506(2) IPC registered in Kallidaikurichi P.S; and Crime No. 36/2008 under Sections 147, 148, 341, 307, 302 and 506(2) IPC registered in Sathankulam P.S.,. Apart from the above adverse cases, he was also involved in a case in Crime No. 107/07 under Sections 147, 148, 149 and 302 IPC registered in Kallidaikurichi P.S.,. The detaining authority looked into all the materials and recorded his subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and he should be detained under the Tamil Nadu Act 14 of 1982 terming him as a "Goonda" and accordingly, made the order of detention, which is the subject matter of challenge.

Learned Counsel appearing for the petitioner would submit as follows:

(i) The detenu was arrested in the ground case in Crime No. 36/2008 by Sathankulam Police on 28.2.2008. Neither Bail Application was filed nor any Bail Application was pending before any Court of criminal law. While the matter stood thus, the detaining authority has pointed out that there was real possibility of the detenu coming out on bail. Thus, such an observation was made when there was no material in the hands of the detaining authority and hence the order suffers from that point of view.

(ii) Insofar as the arrest in the second adverse case, no relative was informed of the said arrest. The detaining authority has not adverted his attention that the detenu was arrested in the second case on 13.3.2008 and that fact was not considered by the detaining authority.

(iii) Added further the learned Counsel for the petitioner that in considering the representation made by the detenu, there was a delay of 11 days and on this ground also, the order under challenge suffers.

The Court heard the learned Counsel for the petitioner and the learned Additional Public Prosecutor for the State. Pursuant to the recommendation made by the sponsoring authority that the detenu was involved in adverse cases referred to above and also one ground case, after looking into all the materials made available, recorded his subjective satisfaction that it is a fit case where the detenu should be termed as a "Goonda" and in order to protect the maintenance of public order, he should be detained under the Tamil Nadu Act 14 of 1982.

The Court, after looking into the materials available, is of the considered opinion that the order suffers on the following grounds:

(i) Firstly, the detenu was arrested in the ground case in Crime No. 36/2008 on 28.2.2008 but no bail application was filed and no bail application was pending before any Court of criminal law but the detaining authority has pointed out that there was real possibility of the detenu coming out on bail. The said observation made by the detaining authority was without any material whatsoever. Hence, it was only an apprehension in the mind of the detaining authority.

(ii) Secondly, there is no material to indicate that the arrest in respect of the second adverse case was informed to any of the close relatives of the detenu.

(iii) Added further, the factum of custody of the detenu pursuant to his arrest in the second adverse case was never considered by the authority.

(iv) Though the learned Additional Public Prosecutor appearing for the respondents has brought to the notice of the Court that out of 11 days delay, 7 days fell on holidays and there was only 4 days delay, it remains unexplained.

Under the circumstances, the Court is of the considered opinion that all the above would cause prejudice to the interest of the detenu. Hence, it is a fit case where the order of detention has got to be quashed and the detenu has got to be set at liberty. Accordingly, the impugned order of detention is quashed. The detenu is directed to be set at liberty forthwith unless he is required in connection with any other case in accordance with law. The Habeas Corpus Petition is allowed accordingly.