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Judgment
R. Mala, J.—In this Habeas Corpus Petition, the Petitioner - wife of the Detenu, challenges the order of detention clamped on the Detenu
by the 3rd Respondent, branding him as a ""Goonda"", 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 (in short
Tamil Nadu Act 14/1982).
Consequent upon the recommendations made by the Sponsoring Authority that the Detenu was involved in two adverse cases, as detailed
below,
1 C.S.C.I.D., Uthamapalayam Police Station u/s 6(4) of TNSC (DDCS) Order, 1982,
Cr. No. 627/2008 r/w 7 (i) a (ii) of EC Act 1955
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2 C.S.C.I.D., Uthamapalayam Police Station u/s 6(4) of TNSC (DDCS) Order, 1982,
Cr. No. 45/2009 r/w 7 (i) a (ii) of EC Act 1955
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and in one ground case in Crime No. 47/2009 u/s 6(4) of TNSC (DDCS) Order, 1982 r/w 7 (i)(a)(ii) of EC Act 1955 on the file of C.S.C.I.D.,
Police Station, Uthamapalayam. The Detaining Authority, on being satisfied that the Detenu is habitually committing grave crime and is also acting
in a manner prejudicial to the maintenance of public order and branding him as a ""Goonda"", as contemplated under the Tamil Nadu Act 14/1982,
and if the Detenu comes out on bail he will indulge in future activities, which will be prejudicial to the maintenance of public order, passed the
impugned order of detention.
Even though several contentions were raised and argued as well, learned Counsel for the Petitioner mainly confined his arguments to the aspect
of non-application of mind by the detaining authority while passing the detention order. When the detenu was branded as a Black Marketer ,he is
facing two adverse case and one ground case. In ground case in crime No. 47 of 2009 has been registered on 20.03.2009 and arrested and
produced before the learned Judicial Magistrate, Uthamapalayam on 21.03.2009 and remanded till 03.04.2009. In the second adverse case, the
occurrence had taken place on 14.03.2009 and case was registered in Crime No. 45 of 2009 u/s 6(4) of TNSC (DDCS) Order, 1982, r/w
7(i)a(ii) of EC Act 1955. In this case also, the accused was produced before the same Magistrate on 21.03.2009 and remanded till 03.04.2009.
But, in grounds of detention, in Paragraph 3, it was stated as follows:
The accused was produced in the Judicial Magistrate Court, Theni on 21.03.2009 and remanded till 03.04.2009. Again he was produced before
judicial Magistrate, Theni on 03.04.2009 and his remand was extended till 27.04.2009 and lodged at Uthamaplayam Sub Jail. The case is under
investigation.
But, in the booklet, no remand extension report was enclosed. So, how the sponsoring authority had prejudged that on 03.04.2009, the detenu
will be produced and the remand period will be extended till 17.04.2009. It is pre-determination only.
It is the duty of the detaining authority that if there is any inconsistencies in the materials placed before him, he ought to have obtained
clarification from the sponsoring authority. But, here, no clarification has been obtained. Hence, the detaining authority has not applied his mind
while endorse his subjective satisfaction based on cogent materials. In the above such circumstances, he prayed for quashing the detention order.
The learned Public Prosecutor has urged that the detaining authority has considered all the materials and come to the conclusion to the
subjective satisfaction based on the cogent materials and passed the detention order, there is no irregularity or infirmity in the impugned order and
he prayed for the dismissal.
On considering the arguments of both sides counsel and perusal of records, the sponsoring authority has filed his affidavit on 31.03.2009,
wherein he has stated as follows:
The accused was produced in the Judicial Magistrate Court, Theni on 21.03.2009 and remanded till 03.04.2009. Again he was produced before
judicial Magistrate, Theni on 03.04.2009 and his remand was extended till 27.04.2009 and lodged at Uthamaplayam Sub Jail. The case is under
investigation.
Considering the above statement, how the sponsoring authority could know that the accused would be produced on 03.04.2009 and remand
period will be extended upto 17.04.2009 on 31.03.2009 itself. But, when the matter has been placed before the detaining authority, if the detaining
authority has really perused entire documents, he would have come across the vital mistake committed by the sponsoring authority. The detention
order has been passed on 03.04.2009. But, there is no evidence to show that the detaining authority called for a clarification regarding the
inconsistency in the averments in his affidavit.
It is pertinent to note that in page No. 131 of the booklet, the ground case in Crime No. 47/2009 u/s 6(4) of TNSC (DDCS) Order, 1982 r/w
7(i)(a)(ii) of EC Act 1955 on the file of C.S.C.I.D., Police Station, Uthamapalayam, at the time of remand, the learned Judicial Magistrate,
Uthamapalayam has mentioned as follows:
The accused produced at 2.00 P.M. No complaints against police. The reason for arrest explained to him. Remanded to custody till 03.04.2009.
In Page No. 77 of the booklet, one ground case in Crime No. 45/2009 u/s 6(4) of TNSC (RDCS) Order, 1982 r/w 7(i)(a)(ii) of EC Act 1955 on
the file of C.S.C.I.D., Police Station, Uthamapalayam, at the time of remand, the learned Judicial Magistrate, Uthamapalayam has mentioned as
follows:
The accused produced at 2.00 P.M. No complaints against police. The reason for arrest explained to him. Remanded to custody till 03.04.2009.
But, there is no document to show that the remand has been extended from 03.04.2009 to 17.04.2009.
While perusing the entire materials, there is nothing to show that the detaining authority has obtained clarification from the sponsoring authority to
show further remand extension of the detenu was done on 03.04.2009. It is pre-determination and pre-judged minds of the sponsoring authority
and non application minds of the detaining authority.
9.The learned Counsel for the petitioner would draw our attention to the decision reported in (2007) 1 MLJ (Crl) 967 (K. Raja @ Sahaya Arokia
Darmaraj v. State of Tamil Nadu, rep. by Secretary to Government, Prohibition and Excise Department, Chennai and Anr.) and culled out the
following portion:
The detention order passed passed by the detaining authority on factually incorrect particulars furnished by the sponsoring authority and even
without clarifying the position from the sponsoring authority is liable to be quashed.
We agree with the ratio decidendi laid down in the above citation and the same is squarely applicable to the facts of the present case.
The detailing authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making
the order, but, even so, if the detaining authority is reasonably satisfied on account of cogent material that there is likelihood of his release and in
view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging an activity
prejudicial to the maintenance and supplies of Essential Commodities to the community, the order can be validly made even in anticipation to
operate on his release. So, the detaining authority has not applied his mind in respect of the remand extension. Since the sponsoring authority filed
an incorrect affidavit, in the absence of any material, it cannot be said that the subjective satisfaction was based upon cogent materials, which in our
considered view, would have the effect of vitiating the detention order Corpus Petition is allowed and the impugned order of detention in H.S.
(M)Confdl. No. 56/08, dated 23.11.2008, passed by the 2nd Respondent, is quashed. The Detenu Murugan @ Pottumurugan is directed to be
released forthwith, unless his presence is required, in accordance with law, in connection with any other case.