(Order of the Court was made by M.CHOCKALINGAM, J) This Writ Application challenges an order of the first respondent made in M.H.S.Confdl No.145/2008 dated 22.11.2008 whereby the husband 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 four adverse cases viz., Crime No.151/2008 under
Sections 294(b),323 of the IPC registered by Karivalamvanthanallur Police Station; Crime No.159/2008 under
Sections 294(b),324, 506(i) of the IPC registered by Karivalamvanthanallur Police Station; Crime No.266/2008 under Sections
147,148,341, 294(b),
323 of the IPC and section 3 of the Tamilnadu Public Property (Prevention of Damage and Loss) Act; Crime No.215/2008 under
Sections 143,147,148,188,341,353 of the IPC and 7(a)ACLA Act and read with Section 3 and 4 of the Tamilnadu Public Property (Prevention of Damage and Loss) Act and in one ground case in Crime No.232/2008 under
Sections 294(b),506(ii) of the IPC registered by Karivalamvanthanallur Police Station, after looking into the materials, 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 under the law of preventive detention and accordingly, made the order of detention, which is the subject matter of challenge before this Court.
4. While assailing the order of detention, the learned counsel for the petitioner would submit that the detenu was arrested on 15.11.2008 in the ground case in Crime No.232/2008 for the incident that took place on 15.11.2008d but, he had not made any bail application either in the second adverse case or fourth adverse case or in the ground case at all. While he was in remand in all the other three cases, there was no real possibility of the detenu coming out on bail by filing bail application. In the instant case, he had not even filed any bail application. Under the circumstances, the observation made by the detaining authority that there was real possibility of the detenu coming out on bail was actually without any basis or any material but it is only an apprehension in the mind of the detaining authority Hence, the order of detention has got to be set aside in view of the non-application of mind on the part of the detaining authority.
5. Apart from that, the learned counsel submitted that there was delay in consideration of the representation of the detenu. Representation was received on 11.12.2008; remarks were called for on 12.12.2008 but remarks were only received on 19.12.2008. Thus, there was delay of 7 days. Apart from this, there was another spell of delay. Minister for Public Works & Law dealt with the representation on 23.12.2008 but the rejection letter was prepared on 30.12.2008. Thus, there was delay of 7 days. It has caused prejudice to the interest of the detenu. Hence, on this ground also the order of detention has got to be set aside.
6. The Court heard the learned Additional Public Prosecutor on the above contention and paid its anxious consideration on the submissions made.
7. It is not in controversy that the detenu was involved in four adverse cases and in one ground case in Crime No.232/2008 under
Sections 294(b),506(ii) of the IPC for the incident that took place on 15.11.2008 and the detenu was arrested on the same day. The order of detention came to be passed on 22.11.2008. When the order under challenge came to be passed, no bail application was filed either in one of the three adverse cases or was pending before any Court of criminal law. While the matter stood thus, the detaining authority has stated in its order that there was a possibility of the detenu coming out on bail by filing bail application. This observation was made without any material or basis whatsoever. It was only an apprehension in the mind of the detaining authority. There must be specific material to come to such conclusion. Mere apprehension in the mind of the detaining authority would not be sufficient to pass such an order. This would touch upon the freedom of the citizen. Hence, the order of detention has got to be set aside.
8. There was delay in consideration of the representation of the detenu. Representation was received on 11.12.2008; remarks were called for on 12.12.2008 but remarks were only received on 19.12.2008. Thus, there was delay of 7 days. Apart from this, there was another spell of delay. Minister for Public Works & Law dealt with the representation on 23.12.2008 but the rejection letter was prepared on 30.12.2008. Thus, there was delay of 7 days. It has caused prejudice to the interest of the detenu. Hence, on this ground also the order of detention has got to be set aside.
9. 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 and District Magistrate, Tirunelveli, Tirunelveli District.
2.The Secretary, Government of Tamil Nadu, Prohibition and Excise Department, Fort Saint George, Chennai - 9.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.