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Judgment
M. Chockalingam, J.—Challenge is made to an order of detention made by the first respondent dated 25.11.2009, whereby the petitioner
detenu was ordered to be detained under Act 14/82 terming him as a Goonda as defined under the provisions of that enactment.
The affidavit in support of the petition is perused including all the materials and in particular, the order under challenge. The Court heard the
learned Counsel on either side.
Admittedly, pursuant to the recommendations made by the sponsoring authority that the detenu is involved in two adverse cases namely
Palayamkottai PS Crime No. 669/2008 for women missing altered to Sections 147, 302, 201 and 506(ii) of IPC and Palayamkottai PS Crime
No. 1783/2009 under Sections 294(b) and 323 of IPC and also a ground case in Crime No. 1904/2009 registered by Palayamkottai PS under
Sections 294(b), 341, 307 and 506(ii) of IPC for an occurrence that took place on 17.11.2009, and he was arrested and sent to judicial custody
on the same day, the detaining authority on scrutiny of the materials available made the order under challenge after recording its subjective
satisfaction that the activities of the detenu were prejudicial to the maintenance of the public order.
Assailing the order, the learned Counsel would submit that as far as the ground case was concerned, bail application was actually filed and it
was pending before the Principal Sessions Division, Tirunelveli, in Crl.M.P. No. 4850/2009; and that at the time when the impugned order came to
be passed on 25.11.2009, the said bail application was pending; but the authority has observed in its order that the detenu is very likely to come
out on bail. The learned Counsel would further add that when the bail application was actually pending before the Court of criminal law, the said
observation was not only premature, but also without any material much less cogent material as the law would require and under the circumstance
the order is vitiated.
Added further the learned Counsel that in the course of the order, the authority has stated in paragraph 7 that it is further informed that he has
the right to make representation to the Chairman, Advisory Board, 32, Rajaji Salai, Singaravelar Maligai, Ground Floor, (Backside entrance),
Chennai Collectorate, Chennai 600 001 through the Superintendent of the concerned Borstal School, and further it has added that any
representation that is made by him will be duly considered by the Government, and thus when this representation is to be forwarded to the
Advisory Board, all the case details must also be forwarded; that as far as that part is concerned, it is not mentioned therein, and the same is also a
lacuna which would go to the root of the matter.
The learned Counsel would further contend that a representation was actually made on 13.1.2010, and there was a long and undue delay in
consideration of the representation; that this has also caused prejudice to the interest of the detenu, and for all the three grounds, the order has got
to be set aside.
The Court heard the learned Additional Public Prosecutor on all the above contentions.
It is not in controversy that after recording the subjective satisfaction as stated above, the detaining authority has made the order under challenge
on 25.11.2009, branding the detenu as a Goonda. It is true that there were two adverse cases and also a ground case. As far as the ground case
in Crime No. 1904/2009 of Palayamkottai PS is concerned, bail application was actually filed, and the same was pending before the Court of
Sessions. It has actually been stated by the detaining authority in paragraph 6 of the order as follows:
...I am aware that he has moved a bail petition before the District and Sessions Court, Tirunelveli in Crl.M.P. No. 4850/2009 on 19.11.2009 in
connection with the case in Palayamkottai Police Station Crime Number 1904/2009 and the same is pending for disposal.
From the very reading of the above, it would be quite clear that the authority was aware that the bail application was pending before the Court
of Sessions in Crl.M.P. No. 4850/2009. But the authority has further observed that there was likelihood of the petitioner coming out on bail. In
such circumstances, when the matter is actually pending before the Court of criminal law, the observation made was actually without any material
whatsoever, much less cogent material. The observation made by the authority should have got some basis. But, in the instant case, without any
basis at all, the decision taken by the authority is not only premature, but also without any material whatsoever. Under the circumstances, this Court
is of the opinion that this ground put forth by the petitioner is a valid one to set aside the order.
As far as the ground Nos. 2 and 3 urged by the petitioner are concerned, this Court is unable to see any force whatsoever. As far as the
second ground that he is advised to put forth a representation before the Advisory Board is concerned, he may follow or may not. As far as the
other part is concerned, placing the case material is actually a duty cast upon the authority, and whether it is done or not is to be seen after it was
placed before the authority. Thus the second ground is not available to the petitioner.
As far as the delay alleged to have been caused in consideration of the representation made is concerned, this Court is unable to see any delay.
From the perusal of the materials placed by the State, it could be seen that the representation was made on 13.1.2010, and it has been considered
and disposed of without any delay whatsoever. Under the circumstances, the ground Nos. 2 and 3 are not available to the petitioner. As far as the
first ground is concerned, this Court is of the view that it is a fit case where it has got to be applied.
In the result, this habeas corpus petition is allowed setting aside the order of detention passed by the first respondent. The petitioner detenu is
directed to be set at liberty forthwith unless his presence is required in connection with any other case.