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Judgment
M. Chockalingam, J.—Challenge is made to an order of detention made by the second respondent dated 20.10.2009, whereby the petitioner''s husband Stalin was ordered to be detained under Act 14/82 terming him as a Goonda.
The Court heard the learned Counsel on either side and looked into the materials available and in particular the order under challenge.
Pursuant to the recommendations made by the sponsoring authority that the alleged detenu was involved in 7 adverse cases namely (i) Thiruvattar PS Cr. No. 14/2003 under Sections 294(b) and 506(ii) of IPC; (ii) Thiruvattar PS Cr. No. 155/2005 u/s 4 of the Tamil Nadu Prevention of Harassment of Women Amendment Act 2002 and Sections 354 and 506(i) of IPC; (iii) Thiruvattar PS Cr. No. 173/2008 under Sections 452, 294(b), 354 and 506(ii) of IPC; (iv) Thiruvattar PS Cr. No. 532/2008 under Sections 294(b), 324 and 379 of IPC; (v) Thiruvattar PS Cr. No. 104/2009 under Sections 147, 148, 353 and 332 of IPC read with Section 7(i)(A) of CLA Act; (vi) Thiruvattar PS Cr. No. 401/2009 under Sections 294(b), 323, 427 and 506(i) of IPC and (vii) Thiruvattar PS Cr. No. 503/2009 under Sections 341, 294(b), 323, 324 and 506(i) of IPC and also a ground case in Thiruvattar PS Cr. No. 555/2009 registered under Sections 341, 294(b), 323, 427 and 307 of IPC for an occurrence that took place on 9.10.2009, and he was arrested and remanded to custody on the very day, the detaining authority on scrutiny of the entire materials available, has made the order under challenge after recording that the activities of the detenu were prejudicial to the maintenance of public order.
The learned Counsel for the petitioner assailing the order brought to the notice of the Court three points which, according to him, would suffice to set aside the order.
Firstly, the order came to be passed on 20.10.2009. Insofar as Crime No. 555/2009, it was claimed by Thiruvattar PS that he was arrested and remanded to custody on 9.10.2009 itself; but it was false. Even on 5.10.2009 itself, he was taken to custody by the police, and immediately, the petitioner wife gave a telegraphic message to the Collector of Kanniyakumari on 7.10.2009, as found in page No. 1, and also the receipt therefore is in page No. 2 of the typed set filed by the petitioner''s side. But, it has actually not been considered. If considered, it would have been referred to in the order, but not done so. The same would be indicative of the fact that it was not at all considered.
Secondly, the period of detention as the law would mandate, has not been mentioned in the order.
Thirdly, bail application was actually filed in Crl.M.P. No. 3201/2009 on the file of the Principal Sessions Division, Kanniyakumari and the same was dismissed on 15.10.2009. But, the authority even after stating so, has observed that there was a real possibility of the detenu coming out on bail. Admittedly, on that day, there was no bail application pending before any criminal Court, and under the circumstances, it was not only premature but also without any material much less cogent material, and hence all these grounds are available to the petitioner to quash that order.
The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
After recording subjective satisfaction, the detaining authority has made the order under challenge on 20.10.2009. At the outset, it remains to be stated that the claim of Thiruvattar police is that the detenu was arrested pursuant to the case registered in Crime No. 555/2009, on 9.10.2009. As pointed out by the learned Counsel for the petitioner, there is evidence to indicate that a telegraphic message was given by the petitioner, the wife of the detenu, on 7.10.2009 itself, stating that her husband was kidnapped by Thiruvattar PS on 5.10.2009 itself. Under the circumstances, once it has actually been addressed to the Collector, it can be taken as pre-detention representation, and it should have been considered by the Collector. But, no reference is made in the entire order in that regard. In such circumstances, a duty was cast upon the authority to call for explanation from the sponsoring authority about the same, but not done so.
Equally, law would mandate that what is the actual period of detention must be made mention in the order. But, in the case on hand, the entire order does not stipulate the period of detention. Thus the order becomes infirm.
Above all, admittedly bail application was filed in Crl.M.P. No. 3201/2009 on the file of the Principal Sessions Division, Kanniyakumari, and the same was dismissed on 15.10.2009, and it has been made mention in the order itself. But, the authority even after mentioning so, has stated that there was a real possibility of the detenu coming out on bail. It would be more apt and appropriate to reproduce paragraph 4 of the order as follows:
4.I am aware that Thiru. Stalin was arrested on 09.10.2009 and duly produced before the Judicial Magistrate, Padmanabhapuram on the same day and remanded upto 23.10.2009 and lodged in the District Jail, Nagercoil. I am also aware that he is in remand in the ground case in Thiruvattar P.S.Cr. No. 555/2009 and the bail application moved on behalf of him in Crl.M.P. No. 3201/2009 in the Court of District and Principal Sessions Judge, Kanniyakumari Division at Nagercoil, was dismissed on 15.10.2009. But there is a real possibility of his coming out on bail....
From the above, it could be seen that the authority even after having knowledge that the bail application already filed by the detenu was dismissed by the Court, has stated that there was a real possibility, and hence it can be well stated that it was only an expression of the impression which was in the mind of the authority and it can only be an inference, but without any material much less cogent material as the law would warrant. Under the stated circumstances, this Court is of the view that all the three grounds are available to set aside the order.
Accordingly, this habeas corpus petition is allowed setting aside the order of detention made by the second respondent. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case.