(Order of the Court was made by M.CHOCKALINGAM,J) In this writ application challenge is made to an order of the third respondent made in 02/N.S.A./2008 dated 18.09.2008, whereby the husband of the petitioner namely S.Abdul Gafoor alias Sheik Abdul Gafoor was ordered to be detained under the National Security Act, 1980 (herein after referred as the Act).
2. The Court heard the learned counsel for the petitioner and also looked into all the materials available and in particular the order under challenge.
3. It is not in controversy that pursuant to the recommendations made by the sponsoring authority, the detaining authority perused the materials available in respect of Cr.No.409/2008 registered on 27.07.2008 by the Pettai Police Station, Tirunelveli, under
Sections 4 and
5 of Explosive Substances Act 1908 read with 153(A), 120(b), 121, 121(A) IPC and recorded his subjective satisfaction that the activities of the detenu were detrimental to the Public order and dentenu is also likely to create communal problem and observing so, the order came to be passed, which is the subject matter of challenge before this Court.
4. Advancing his arguments, on behalf of the petitioner the learned counsel for the petitioner raised two grounds. Firstly, he was arrested in connection with the case referred to above on 27.07.2008. A bail application was filed before the Court of Sessions, Tirunelveli and the same was dismissed on 11.09.2008. But, no application was actually filed or pending on the day when the detention order came to be passed i.e. on 18.09.2008. But the authority has observed in its order that there is a real possibility of the detenu coming out on bail. It was only an apprehension and it is unfounded. Since it was without any materials whatsoever, the order suffers. Secondly, two representations were made. The pre-detention representation was made on 31.07.2008 and the second representation was made on 24.09.2008, subsequent to the passing of the detention order. In so far as both of them are concerned, they were never considered or decided. In such circumstances, it would also affect the order.
5. The Court heard the learned Additional Public Prosecutor and paid its anxious consideration on the same.
6. A perusal of the entire materials would clearly indicate that the detenu was arrested on 27.07.2008 in connection to Cr.No.409/2008 which was registered by the Pettai Police Station, Tirunelveli under the above provisions of law. It is not in controversy that the detenu filed a bail application in Crl.M.P.No.3219/2008 before the Sessions Court, Tirunelveli and the same came to be dismissed on 11.09.2008. When the order under challenge came to be passed on 18.09.2008, there was no bail application filed or pending before any Court of criminal forum. In such circumstance, the observation made by the detaining authority in his order that there is a real possibility of the detenu coming out on bail is without any basis or any materials. It was only an apprehension and prejudging the situation and this would certainly affect the order.
7. As rightly contended by the learned counsel for the petitioner the second circumstance what is noticed by the Court to set aside the order is that insofar as the representation made on 24.09.2008, which was after the passing of the order i.e. 18.09.2008, there is nothing to indicate either it was considered or decided and it was also intimated to the petitioner. A perusal of the counter would indicate that the two representations which were alleged to have been made one pre-detention representation dated 31.07.2008 and the other post detention representation dated 24.09.2008 were not actually received at all. But when acknowledgment was placed before this Court in order to accept the contention put forth by the learned counsel for the petitioner, there was no material available for the receipt of the pre-detention representation dated 31.07.2008. In so far as the second representation dated 24.09.2008 is concerned acknowledgment is placed before this Court which would clearly indicate that the same was also received by the detaining authority. But the counter would read that it has not been received. Thus it would make it quite evident that there was a second representation dated 24.09.2008 and the same was not considered and no decision has been taken thereon. This would undoubtedly affect the order. Thus, it would be quite clear that the representation dated 24.09.2008 was made and it has not been considered. Further, once a representation which was actually made and received remained not considered, no question of placing the same before the advisory board would arise which would go to show that it is not well within the frame work of law. The above said grounds are suffice to set aside the order under challenge.
8. Accordingly, the Habeas Corpus Petition is allowed and the detention order in No.2/N.S.A/2008 dated 18.09.2008 passed by the third respondent is quashed. The detenu is directed to be set at liberty forthwith unless his presence, in accordance with law, is required in connection with any other case.
jikr/sj To:
1.The State of Tamil Nadu, Secretary to Government, Public (Law and Order)-F Department, Government of Tamil Nadu, Fort St.George, Chennai-9.
2.The Director General of Police, Beach Road, Chennai.
3.The Commissioner of Police, Tirunelveli, Tirunelveli District.
4.The District Collector, Collectorate Building, Tirunelveli.
5.The Secretary of Government, Government of India, Ministry of Home Affairs (Internal Security) North Block, New Delhi-110 001.
6.The Chairman, Advisory Board, Koovam Illam, Chennai.