(Order of the Court was made by M.CHOCKALINGAM, J) Challenge is made to an order of detention made by the second respondent in NSA Detention Order No.09/2008 dated 26.7.2008 whereby the son of the petitioner was ordered to be detained under the provisions of the National Security Act 1980 (Central Act 65 of 1980).
2. Consequent upon the recommendation made by the sponsoring authority that the detenu was involved in five adverse cases viz., Crime No.239/2008 under
Section 143,341,336 IPC and 3(1) TNPPDL Act 1984 registered in Dindigul Town North Police Station; Crime No.479/2008 under
Sections 147,341,336 IPC and Section 3(1) TNPPDL Act 1984 and in one ground case in Crime No.346/2008 under
Sections 147,148,341,307, 153(A),
153(B) IPC r/w 3(1) TNPPDL Act 1984 registered in Dindigul Town South Police Station, the detaining authority on scrutiny of the materials available recorded his subjective satisfaction that the activities of the detenu were prejudicial to the maintenance of public order as contemplated under the National Security Act 1980 (Central Act 65 of 1980) and it was a fit case where he should be detained and an order of detention had got to be passed under the National Security Act 1980 and accordingly, made the order of detention, which is the subject matter of challenge.
3. The Court heard the learned counsel for the petitioner and looked into all the materials available in particular, the order under challenge.
4. Advancing his arguments on behalf of the petitioner, the learned counsel appearing for the petitioner raised the following grounds:-
(i) The order of detention came to be passed on 26.7.2008. A perusal of the order of detention would indicate that the detenu was produced before the Judicial Magistrate No.III, Dindigul and that his remand extension was made by video conferencing. On the contrary, when the order of remand, looked into, it would indicate as if the accused/detenu was produced before him. Thus, it casts a doubt whether the detenu was actually produced or remand was extended by video conferencing. When such a discrepancy was found from the materials available, the detaining authority should have called for an explanation from the sponsoring authority but failed to do so.
(ii) Secondly, insofar as the ground case is concerned, he had applied for bail and bail was actually granted but neither bail applications were filed nor were pending before any Court of criminal law in the adverse cases. But, the sponsoring, though appraised of the situation, has pointed out in his order that there was a real possibility of the detenu coming out on bail by filing bail applications before the same Court or higher Court and that in similar cases, accused were enlarged on bail by the same Court or by the superior Courts after lapse of some time. Thus, he prejudged the situation where a bail could be granted or refused. Hence, the order of detention would suffer from this point of view.
(iii) On the contrary, in the grounds of detention, though there was a reference to the ground case, no particulars were given which warranted him to form an opinion that the activities of the detenu were prejudicial to the maintenance of public order.
(iv) Added further the learned counsel that the law of preventive detention would stipulate that all the materials must be placed before the Advisory Board within a stipulated period of three weeks but no materials were available to indicate whether it was done in time or was not and it also casts a doubt. Under the circumstances, the order of detention would suffer on all the above grounds. Hence, it has got to be set aside.
5. The Court heard the learned Additional Public Prosecutor on the above contentions. On a careful scrutiny of the entire materials in consideration of the submissions made, the Court has to necessarily agree with the learned counsel for the petitioner on the following grounds:
(i) Firstly, it is not in controversy that following the recommendation made by the sponsoring authority that the detenu was involved in two adverse cases and in one ground case, the detaining authority has passed the order of detention. As could be seen from the materials, it is not in controversy that the incident had taken place on 18.6.2008 and arrest was made on 19.6.2008 and he was produced before the Court and he was remanded to 17.7.2008 and on 17.7.2008, his remand was extended to 31.7.2008. When such remand was extended whether the accused/detenu was produced before the Court or was not is a fact. A perusal of the detention order would indicate that remand extension was made by video conferencing but the materials placed before the Court and supplied to the detenu would indicate as if he has produced in person before the Court and thus, whether the detenue was produced before the Judicial Magistrate No.III, Dindigul on 17.7.2008 in person or by video conferencing is not known. When such a discrepancy was found, the detaining authority should have called for an explanation but failed to do so. Though the remand extension was a fact, the way in which it was done should have been got clarified but not done. Either this should have escaped the scrutiny of the detaining authority or if it was really scrutinised, a clarification was not sought from the sponsoring authority. Hence, it would make the order infirm and the order has got to be set aside on that ground.
(ii) Secondly, it is not in controversy that the detenu was involved in two adverse cases and one ground case. In the ground case, he was granted bail but he could not furnish security as found in the order. Insofar as the adverse cases, the detenu had not moved any bail petitions at all but the detaining authority has observed in his order that there was a real possibility of the detenu coming out on bail. The detenu could not furnish security though granted bail in the ground case and had not moved any bail petitions in respect of the two adverse cases. If to be so, it is a matter of surprise to note which warranted the detaining authority to record a statement that there was a likelihood of the detenu coming out on bail. Thus, in the opinion of the Court, it was only an apprehension in the mind of the detaining authority without any material or reason. It is also an indicative of the pre-judgment of the detaining authority what is not accepted to do.
(iii) Thirdly, as rightly pointed out by the learned counsel appearing for the petitioner all these materials after passing of the detention order must have been placed before the Advisory Board within a stipulated period of three weeks for the purpose of appraising to sustain the order or to set aside the order. In the instant case, there is no material to indicate that the materials were placed within the stipulated period of three weeks. It was also raised in the grounds of attack set out in the affidavit filed in support of the petition and the submissions made in this regard before the Court by the learned counsel appearing for the petitioner. The respondent/State has no answer to offer and no where in the course of the order, this ground is met. It also casts a doubt whether the materials were placed before the Advisory Board within the stipulated period of three weeks.
6. On all the above grounds, the Court is thoroughly satisfied that the detenu is entitled to be set at liberty. Hence, 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 in accordance with law. The Habeas Corpus Petition is allowed.
asvm To
1.The Secretary to Government of Tamil Nadu, Public (Law and Order-F) Department, Fort St.George, Chennai - 600 009.
2.The District Collector and District Magistrate, Dindigul District.
3.The Secretary to the Government of India, Ministry of Internal Security, North Block, New Delhi - 110001.
4.The Superintendent of Prison, Madurai Central Prison,
5.The Secretary, Advisory Board, Coovam House, Omandurar Government Estate, Swami Sivanandha Salai, Chennai - 600 002.
6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.