(Order of the Court was made by M.CHOCKALINGAM, J) This Writ Application challenges the order of the first respondent made in M.H.S.Confdl.No.116/2008 dated 23.7.2008 whereby the son of the petitioner 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) branding him as a "Goonda".
2. The Court heard the learned counsel appearing for the petitioner and looked into all the materials available including the order under challenge.
3. Pursuant to the recommendation made by the sponsoring authority that the detenu was involved in two adverse cases viz., Crime No.134/2008 under
Section 302 IPC registered by Manoor Police Station; Crime No.66/2008 under
Sections 294(b),506(ii) IPC registered by Gangaikondan Police Station; and in one ground case in Crime No.49/2008 under
Sections 353,307,506(ii) of the IPC registered by Seevalaperi Police Station, after looking into the materials available, the detaining authority recorded his subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order and that he should be detained as a "Goonda" and accordingly, made the order of detention, which is the subject matter of challenge before this Court.
4. Advancing his arguments , learned counsel for the petitioner has brought to the notice of the Court the following grounds:-
(i) Though the detenu was involved in two adverse cases and in one ground case, no bail application was filed by the detenu either in adverse cases or in the ground case at all. But the detaining authority has stated in its order that there was real possibility of the detenu coming out on bail by filing bail application for the above cases since in similar cases bails are granted by the concerned court or higher courts. This observation was made without any material or basis at all. Under the circumstances, it would affect the order.
(ii) Secondly, there was delay in consideration of the representation. Representation was received on 20.10.2008; remarks were called for on 22.10.2008 but the remarks were only received on 3.11.2008. Thus, there were 10 days delay, which remain unexplained.
(iii) Added further the learned counsel that though the detention order was served on the next day, the grounds of detention was only served on the sixth day of detention but the law of preventive detention mandates that it must be given at least 5th day. Thus, there is violation of mandatory provisions of the law. Hence, the order of detention has got to be set aside.
5. The Court heard the learned Additional Public Prosecutor on the above contention and paid its anxious consideration on the submissions made.
6. After hearing the submissions, the Court has to necessarily agree with the learned counsel for the petitioner to set aside the order of detention. Admittedly, the detenu had never filed bail application either in the adverse cases or in the ground case. While the matter stood thus, the detaining authority has observed in its order that there was a real possibility of the detenu coming out on bail. Thus, it would be quite clear that it was without any material or basis. It was only an apprehension in the mind of the detaining authority. Mere apprehension in the mind of the detaining authority would not be sufficient for passing the order of detention but there must be specific or at least reasonable material but in the instant case, nothing is available to infer so.
7. Insofar as the delay is concerned, as rightly pointed out by the learned counsel for the petitioner, there was delay of 10 days out of which 2 days were holidays and thus, there was 8 days delay, which remain unexplained. In the considered opinion of the Court, it would be pointing to the fact that the authorities lack promptitude in considering the representation of the detenu.
8. Apart from that, the grounds of detention was served on the detenu on 6th day. As per
Section 8 of the Act, it must be served within 5 days but it was served beyond 5 days. Hence, the order of detention would suffer on this ground also.
9. On all the grounds referred to above, the order of detention has got to be set aside. Accordingly, the order of detention is set aside. The detenu is directed to be set at liberty forthwith unless he is required in connection with any other case. The Habeas Corpus Petition is allowed.
asvm To
1.The District Collector & District Magistrate, Tirunelveli District, Tirunelveli.
2.The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai - 600 009.
3.The Inspector of Police, Seevalaperi Police Station, Tirunelveli District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.